Introduction to Legal Flashcards
Parliament
A formal assembly of representatives of the people that is elected by the people and gather to make laws.
Government
The ruling authority to govern, formed by the political party or parties (known as a coalition) that holds the majority in the lower house in each parliament. The members of parliament who belong to this political party form the government.
Opposition
The political party that holds the second largest number of seats (after the government) in the lower house. The opposition questions the government about policy matters and is responsible for holding the government to account.
Crossbenchers
Members of parliament who are not members of either government or opposition (e.g. independent members or members of minor parties). They are named after the set of seats given to them in parliament called the ‘crossbench’.
Statute
A law made by parliament, that being a bill that has passed through parliament and has received royal assent.
Royal Assent
The formal signing and approval of a bill by the governor-general. This then creates a Statute.
Jurisdiction
The lawful authority (or power) of a court, tribunal or other dispute resolution body to decide legal cases.
Common Law
Law made by judges through decisions made in cases. Also known as case law or judge-made law.
Precedent
A principle established in a legal case that should be followed by courts in later cases where the material facts are similar. Precedents can be either binding or persuasive.
Summary offences definition
Summary offences are minor crimes that are committed by the accused. You can recognise whether a crime is a summary offence or not by it being listed in the Summary offences Act 1966 and it being heard in the Magistrates’ Court.
Summary offences examples
Drink driving, jaywalking, minor assaults, minor drug possession.
Where are summary offences heard
Summary offences are head in the Magistrates’ Court, where 95% of criminal cases are heard.
Summary offences pre-trial procedure
There are no commital hearings for summary offences, nearly all accused are granted bail.
Summary offences sanctions
- Adjourned undertaking (with or without a recorded conviction)
- Fines
- CCO
- Imprisonment (for max. of 5 years)
Indictable offences definition
Indictable offences are serious crimes. As a general rule, they are found within the Crimes Act 1958.
Indictable offences heard and determined summarily
These are indictable offences (serious) but they can be heard in the Magistrates’ Court as if they were summary offences. Whether or not this can occur is determined by:
- The statute e.g. the Criminal Procedure Act 2009 (Vic) lists a number of these offences which includes theft if the property stolen is a motor vehicle.
- The courts agree the offence is appropriate to be heard summarily.
- The accused must also agree.
- In cases of robbery/theft if amount stolen is below $100,00.
Why choose to have an indictable offence heard summarily
- less serious sanction - cap = 5 year imprisonment
- Quicker - more mag courts, no pre-trial and no jurors
- No juries as offense may be divisive
Why choose to not have an indictable offence heard summarily
- Jury - may want members of com. to decide
- Magistrates potentially less expertise
- More publicity - sway public
Committals definition
Committal - usually referring to the whole committal proceedings is a pre-trial procedure that occurs before indictable offences are heard at trial in the County or Supreme Court. At this stage, it is the responsibility of the prosecution to demonstrate to the Magistrate that there is ‘Prima Facie’ - at first glance - sufficient evidence to support a conviction at trial.
Burden of Proof definition
The burden of proof is a requirement within the legal system that places responsibility on one party to prove the facts of a case. For criminal law, this onus (responsibility) rests upon the prosecution (that is, the prosecution must prove the accused guilty)
The rationale behind this idea is that since the prosecution (state) has accused the wrongdoer (accused) of a crime, it is up to the prosecution to est. the facts.
Burden of proof reversed
There are some instances where the burden is reversed e.g.
- If the accused’ defence for their actions is mental impairment -> must demonstrate that they are not of sound mind (Medical reports, psych reports)
- Possession of an illegal substance on their property and cannot demonstrate to the court on the contrary
The standard of proof definition
This refers to the level of proof or in other words the certainty or strength of evidence required to prove the case. In a criminal case, this standard is beyond a reasonable doubt. That is, the prosecution must prove beyond a reasonable doubt that the accused is guilty.
Beyond a reasonable doubt
This is the standard of proof in criminal cases. This does not mean that no doubt can exist at all, but rather, that no reasonable doubt is possible by evidence presented or no other logical conclusion can be drawn.
Presumption of innocence definition
A key principle within the criminal justice system whereby a person who has been accused of a crime must be presumed innocent until proven otherwise or pleads guilty. This is why a person is referred to as an ‘accused’ before they are proven guilty.
Presumption of innocence legislation
In Victoria, this right can be found within the Charter of Rights and Responsibilities Act 2006 (Vic); prior to this is was a well established common law right.
How presumption of innocence is upheld
- The accused can apply for bail which is normally granted unless the Magistrate is convinces that they will abscond, be a danger to the community or themselves.
- For indictable offences, the prosecution must go through committals to demonstrate that is sufficient evidence to proceed to trial.
- The police must reasonable believe that a person has committed a crime before arresting them.
Rights of the accused legislation
Charter of Human Rights and Responsibilities Act 2006 (Vic) - rights in this charter based upon those outlined in the International Covenant of Civil and Political Rights 1966.
Right to be tried without unreasonable delay definition
The charter states that a person charged with a criminal offence is entitled to a guarantee that they will be tried without unreasonable delay (S. 21 and 25). This right is without discrimination which means every accused person is entitled to this provision.
Time frame for trial without unreasonable delay
Time frames include 3 months for a committal mention for sexual offences and 6 months for non-sexual offences.
The right to silence definition + legislation
The term ‘right to silence’ refers to an entitlement whereby the accused does not have to say or do anything when being charged with an offence.
The Evidence Act 2008 - negative inferences cannot be drawn should an accused refuse to answer questions.
How is the right to silence safeguarded
-Accused can refuse to answer any questions and does not have to give information as part of an investigation of a crime.
-The accused cannot be forced to give evidence in a criminal trial or answer any questions.
-The accused does not have to file a defence or call a particular witness.
The right to trial by jury definition + legislation
The right to trial by jury refers to the entitlement that, should an accused plead not guilty to an indictable offence, their guilt must be determined by a group of twelve ‘peers’ rather than a judge alone.
The Juries Act 2000 (Vic) - requires a jury of 12
The Criminal Procedures Act 2009 (Vic) - contains provisions for jury empanelment + jury directions.
Who is a victim definition
A victim is a person who has suffered directly or indirectly as a result of a crime.
Victim legislation
Victims Charter Act 2006 (Vic)
-Recognises that victims should be offered certain information during the investigation.
-Reduce the likelihood of secondary victimisation which may be experienced through their interaction with the criminal justice system.
-Identifies the primary victim
-The vulnerability stemming from victims that are of young age or with certain disabilities.
The right to give evidence using alternate arrangements definition + legislation
This right refers to a situation whereby a victim is also a witness to the crime and may be required to testify in court. When this occurs, victims are entitled to certain adjustments to accommodate and lessen further trauma/stress.
Criminal Procedures Act 2009 (Vic)
offenses permissible for evidence using alternate arrangements
-A sexual offence
-A family violence offence
-An offence of obscene, indecent language or threatening behaviour
-An offence of sexual exposure
The right to be informed about proceedings definition
The Victim’s Charter recognises that victims may require additional support due to being adversely affected by the crime.
Informed about proceedings during investigation
-Details of the offence that the accused has been charged with
-The date, time and place of the hearing of charges
-The outcome of criminal proceedings including sentencing imposed
-Why lesser or fewer charges have been laid
-Details of any appeals
The right to be informed about the release date of the accused definition
A person who is a victim of a criminal act of violence may apply to be included in the Victims Register - whereby they can receive certain information about an offender who has been imprisoned including notification of the release of the prisoner on parole at least 14 days before the release.
Other rights to information include if the offender escapes from prison, the right to make a submission if the offender is applying for parole.
offences allowing victim to be informed about release date of the accused
-Rape and other sexual offences
-Aggravated burglary
-Kidnapping
-Stalking
-Child stealing
-offences involving assault or injury punishable by imprisonment
-Culpable driving causing death
-Dangerous driving causing death or serious injury
-Failing to stop after a motor vehicle accident causing death or serious injury
Fairness definition
All people can participate in the justice system and its processes should be impartial and open.
Fairness purpose
Designed to ensure that
- Innocent people are not found guilty of a crime they did not commit
Public confidence is maintained
Impartial Processes definition
Courts and personnel - including judges, magistrates and jury members are independent and impartial. This means they should not show bias towards either party and case must be decided on facts and law - not prejudice
Impartial processes examples
- The judge/magistrate and jury must acknowledge any association with either parties and remove themselves from the case
- Jury members are empanelled from the community at random to ensure limited bias
- Both sides have the opportunity to ‘challenge’ a jury member if there is perceived bias
Apprehended bias
A situation where a fair minded person might believe that the person hearing or deciding a case might not bring an impartial mind
Open processes definition
The ability for the community to be informed and scrutinise the legal system through processes being transparent. This allows legal personnel to be held accountable and answerable for their actions
Open Processes examples
- The requirement that hearings should be conducted in public - with certain exceptions*
- Court judgements (decisions) are made available to the public
- Allowing the community, media and victims to attend court hearings
- Juries - members of the community being able to participate in and decide on a verdict
*Courts may need to be closed to the public or media at times to protect a witness or a child
Participation definition
This feature refers to ability for various individuals - the accused, victims and witnesses to engage with the criminal justice system
Participation examples
- The opportunity to prepare their case through knowing the facts (during committals the prosecution must disclose all relevant evidence to the accused)
- The opportunity to examine witnesses (both parties should have the opportunity to cross-examine witnesses provided by other side apart from vulnerable witnesses)
- Use of a lawyer (the accused should be able to defend themselves through legal assistance chosen by them; if they are eligible should receive assistance via VLA)
- The right to not testify against oneself (the right to silence)
Equality definition
All people engaging with the justice system and its processes should be treated in the same way. However if the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow everyone to engage with the justice system without disparity or disadvantage
Equality legislation
The Human Rights Charter states that
- Everyone is equal before the law (Lady justice is blind)
- Everyone is entitled to equal protection of the law without discrimination
- Everyone has the right to equal and effective protection against discrimination
Same treatment definition
This refers to formal equality whereby all individuals are treated the same and given the same levels of support regardless of their personal differences or characteristics such as race, religion, gender, identity or age.
This idea of equality adopts a ‘one size fits all’ approach
Same treatment examples
- All accused are entitled to the presumption of innocence - regardless of their characteristics
- Everyone who contacts a community legal centre should receive the same information
- All accused who pleads not guilty should be given access to the courts system
- All victims should be provided information regarding proceedings - unless they don’t want to
- All accused people should be entitled to a fair trial with the same processes
Different treatment definition
This refers to substantive equality whereby the legal system did treat people in the same way but in doing so causes disadvantage or disparity then measures/adjustments should be put in place to allow people to participate in the justice system.
This is when the ‘one size fits all’ approach does not work
Different treatment examples
- The provision of interpreters for all individuals - accused, victims, witnesses who do not understand english
- The provision of Legal Aid to support accused who cannot afford legal representation
- Alternate arrangements made to support vulnerable witnesses
- The provision of the Koori court for First Nations offenders
Access definiton
All people should be able to engage with the justice system and its processes on an informed basis
Engagement definition
To engage with the justice system, people need to be able to use and participate in the system
Engagement examples
- Physical access - the location of courts in Victoria indicate that they are situated in cities or areas of population density. This may lead to people living in rural areas having limited access or having to endure additional hardships in travel to go to court
- Technological access - hearings and conferences can be conducted virtually. However individuals living in areas that are lacking infrastructure for internet access or those who have a disability may have difficulty in utilising these methods
- Financial access - Victorian Legal Aid is limited in its funding and thus ability to support individuals who do not have the means to pay for legal representation. People should not be prevented from defending their case because they do not have the financial means to do so
Informed basis definition
People should be aware of their legal rights and the processes involved in their case. This means receiving adequate information in order to make an informed decision - e.g. deciding whether to plead guilty/not guilty
Informed basis examples
- Education - individuals with higher levels of education are generally more informed about their rights and have a more thorough awareness of the legal system. Information published by courts should be printed/produced in plain-english to support those with lower literacy levels
- Access to legal support services - having free access to legal support services can help people be more informed about their rights. These can include going to generalist community legal centres that are located in particular suburbs or specialist community legal centres such as those specifically designed to assist women or refugees
- Legal representation - having legal representation is one of the most effective ways that a person, particularly an accused person can be informed about their rights and legal processes. Although VLA is limited from providing full support for everyone individual that requests assistance, there are targeted and tiered level of assistance e.g. mention lawyers to full grants of legal assistance
