Legal SAC 2

Question 1

Committal Hearings

Answer 1

• Committal proceedings take place in the Magistrate’s court as a part of the pre-trial processes.
• They are used only for indictable offences where the accused has pled not guilty.

Question 2

Purpose of Committal Hearings

Answer 2

• They are used to determine whether the charge can be heard summarily. To find out the plea of the accuses and top determine whether there is enough evidence to support a possible conviction.
• Ensures trial is fair - gives the accused the opportunity to review and test the evidence against them, prepare their own case and understand all of the issues.

Question 3

Strengths and weaknesses of Committal Hearings

Answer 3

Strengths:
- filters out weak cases.
- allows accused to be accused to be informed of case against them.
- onus is on the prosecutor to establish enough evidence (supports burden of proof).
Weaknesses:
- complicated process and can be unfair for un unrepped party.
- can be expensive.
- can add to delays.
- may be unnecessary for stronger cases.

Question 4

Plea Negotiations

Answer 4

• Informal discussions between parties about charges.

- negotiations can result in an agreement on a guilty plea which usually is for fewer or lesser charges.

Question 5

Purpose of Plea negotiations

Answer 5

• plea negotiations are a means for resolving a criminal case without it going to trial, saving time and expenses.
• ensure that the charges reflect the gravity of the crime committed.

Question 6

Strengths and Weaknesses of Plea negotiations

Answer 6

Strengths:
- saves costs, time and resources associated with a full trial.
- ensures a prompt determination of criminal cases.
- victims and others are saved the trauma of the trial process.
- certainty of outcome.
Weaknesses:
- Victims/community may feel the accused was ‘let off’ getting a more lenient sentence.
- the accused may feel pressured into accepting a deal.
- avoids the need for the persecutor to prove the case beyond reasonable doubt.

Question 7

Sentence Indications

Answer 7

• a statement by a judge to an accused advising them about the sentence they could face if they plead guilty before a trial starts.
• used for both summary and indictable offences
  Indictable offences:
• accused applies for a sentence indication.
• prosecutor consents
• court can refuse.
• if not, court indicates whether they are likely to impose a custodial sentence.
  Summary Offences:
• accused is not required to apply.
• can be given at any time
• no need for prosecutor to consent.

Question 8

Purpose of Sentence Indications

Answer 8

• gives clarity about the likely sentence so the accused can make an informed decision on whether to plead guilty or not.
• saves time, costs, resources, stress and inconvenience of a trial or hearing.
• early closure for victims and families.
• frees up resources.

Question 9

Appropriateness of Sentence indications

Answer 9

• whether the accused has applied for one.
• the court hearing the charge, sentence indications more likely to be given out in County and Magistrate’s court.
• whether there is sufficient information for judge or magistrate to give an indication.
• the nature of the offence, Sentence advisory council states that sentence indications are not appropriate for sex offences.

Question 10

Strengths and Weaknesses of Sentence indications

Answer 10

Strengths:
- Allows for early determination of the case.
- can save money and resources.
- can be conducted in open court.
-Indication is given be an experienced and impartial judge/magistrate.
- can minimise the trauma associated with the trial/hearing process.
- impact on victims is taken into account.
Weaknesses:
- for indictable offence, court is not obliged to give an indication.
- in higher courts, prosecution must be consulted.
- can be undertaken behind closed doors, may result in lack of transparency.
- sentence indication is given before all the facts have been admitted or proved.
- may deny the victim their ‘day in court’.

Question 11

Role of Judge

Answer 11

the judge acts as an impartial 'umpire' at trial and makes sure that court procedures are carried out in accordance with the court's rules. 
responsibilities:
- manage the trial.
- decide on admissibility of evidence.
- attend to jury matters
- hand down a sentence.

Question 12

Role of Jury

Answer 12

Juries are composed of 12 randomly selected people, they are the deciders of fact who listen to and remember evidence so they can deliver an informed verdict.
Responsibilities:
- decide what is fact and what is not.
- be objective
- listen to and remember evidence.
- understand directions given by the judge.
- deliver a verdict.

Question 13

Role of Parties

Answer 13

Parties present evidence and arguments to the jury. There are two parties in every criminal case and both of them are fully responsible for their own cases. 
responsibilities:
-Give an opening address.
- assist the judge in jury matters.
- present party's case.
- give a closing address.
- make submissions about sentencing.

Question 14

Role of Legal Practitioners(usually about the party of accused)

Answer 14

two types of legal practitioners that an accused is represented by in trial, Barrister and Solicitor.
Barrister- presents the evidence and argue’s the case at trial.
Solicitor- presents the evidence and argues the case at trial.
Responsibilities of Legal Practitioners:
- be prepared
- comply with their duty to the court.
- present their case in the best light possible.

Question 15

Purposes of Sanctions

Answer 15

Rehabilitation:
- to treat the underlying causes of the offending in the hope that the offending will stop.
Punishment:
-offender must experience punishment in order to ensure that justice is done.
Deterrence:
- discourage further offending by the accused (specific deterrence) and the general public (general deterrence.).
Denunciation:
- register the disapproval of the courts to the broader community.
Protection:
- Safeguard the community from dangerous criminals who have offended.

Question 16

Factors to Consider when sentencing

Answer 16

Prior Convictions:
- prior convictions are read out in court after a guilty verdict is delivered. If a person has prior convictions they will likely receive a more severe sentence.
Plea in Mitigation:
- the offender may receive character references from employers, school teachers or community organisations, if the defendant’s character references are convincing, this may reduce their sentence.
Remorse Shown by Offender and the Offender’s Circumstances:
- if the offender shows no remorse then this may result in the offender receiving a more sever penalty, and vice versa.
- the court often considers the personal circumstances of the offender which may shed light on any reasons for the offenders behaviour. this may include cultural or family background, age, mental health, substance addiction.
Early Guilty plea:
- If the offender submits an early plea of guilty, they will likely receive a reduced sentence.
Victim Impact Statements:
Courts can hear a statement detailing the loss, injury or damage sustained at the hands of the offender.

Question 17

Fines

Answer 17

Fines are a monetary penalty paid by the offender to the state. Courts take into account offenders financial circumstances and also any property damage which ,au increase the value of the fine.
Penalty Units:
Fines are expressed in levels from 1-12.
- level 2 is highest.
- level 12 is lowest.
- courts can’t issue a fine for a level 1 offence.
Purposes:
- Punishment.
- Specific & General Deterrence
- Denunciation
Ability of fines in achieving their purpose depends on….
-the wealth of offender. The wealthier offender, the less likely a fine will punish them or act as a specific deterrent.
- the ability to denounce a crime.
- whether the fine is sufficient to act as a general deterrent and whether there is an other more appropriate sanction.

Question 18

CCO’s

Answer 18

A supervised sentence served in the Community where the offender is given the opportunity to stop their criminal behaviour and undergo treatment or take part in educational, vocational or personal development programs.
Conditions:
- Offender must not commit another offence.
- offender must report to and receive visits from a specified community corrections officer.
- must not leave Victoria without permission.
Every CCO must include at leat One Special Condition:
- unpaid community work
- supervision
- treatment/rehab
- non-association
etc.
Purposes:
-Punishment - Specific Deterrence. - Rehab
- Protection.
Ability to Achieve Purposes:
- appropriateness of conditions.
- whether offender will compl.
- whether condition addresses the crime.

Question 19

Imprisonment

Answer 19

A custodial sentence where offenders have lost their right to live in the community and are held in custody for a period of time as a result of their criminal actions.
Prison Terms:
Prison terms are aided by levels of crime. Level 1 is the highest and carries a maximum term of life for charges such as Murder. Level 5 is the lowest with a maximum term of 10 years for charges such as theft and threats to kill.
Concurrent/Cumulative Sentences:
-Concurrent sentences are where two or more sentences are served by an offender at the same time. e.g. 5 years for aggravated burglary, 2 years for assault - offender serves 5 years.
- Cumulative sentences are where an offender serves a total term where two or more sentences have been added together, e.g. in the above case they would serve 7 years.
Purposes:
-Punishment - Specific & General Deterrence. - Rehab
- Protection - Denunciation.
Ability to Achieve its Purposes:
- The rate of recidivism.
- the exposure of offenders to negative influences.
- whether the offender will have access to and chose to undertake methods of rehabilitation.

Question 20

Reforms - Costs

Answer 20

Costs associated with the criminal justice system can be significant. Cost of legal representation and availability of legal aid are factors which restrict the criminal justice system achieving P.O.J, whilst assistance given to self represented parties enhance it.
Cost of Legal Rep:
- everyone has the right to legal rep but not everyone can afford it. Limited access to legal rep can result in an unfair trail for the accused, they are at risk of not being treated equally before the law, and may have trouble accessing the courts and mechanisms that are used to determine criminal charges.
Availability of Legal Aid:
-Not all people who can’t afford legal rep are eligible for legal aid, and even for those who are eligible many cannot use these facilities due to the incredibly high demand. Restricting the criminal justice system’s ability to achieve P.O.J.
Assistance to Self- Repped parties:
Has been an increase in self repped parties due to the lack of funding of VLA and CLCs. Judges and Magistrates provide assistance to ensure that is not detrimental to the criminal justice system achieving P.O.J.

Question 21

Recent and recommended Reforms for Costs

Answer 21

Reforms:
Expansion of Legal services in Hume/Goulbourn regions where there is predominantly a lower socio-economic population.
Robot Lawyer:
- free online website which helps those who aren’t eligible for legal aid. it does not provide tailored advice but does increase access to generic legal information and advice.

Recommended Reforms:

• Further funding to legal aid and CLCs.
• Increase quantity of pro-bono cases.

Question 22

Reforms - Time

Answer 22

Delays in having a trial head and determined can affect the ability of the Criminal Justice System to achieve the P.O.J.
Factors Restricting Ability to achieve P.O.J:
-Delays in preparing case for trial.
-Court delays.
Factors which Enhance “”:
- Use of Plea negotiations and sentence indications.
- Appeals in the court of appeal.
Delays in Prepping a Case for Trial and In court:
- preparing case for trial is a time consuming process where parties have to gather evidence, witnesses and prosecution needs to share info with accused.
- delays in the courts create frustration and stress amongst both thee accused and victims
- County court trials may commence 8-12 months after the original charge was laid down.
- delays can inhibit the criminal justice system to achieve fairness and equality.
Plea Negotiations and Sentence Indications:
- Both combine to save time and resources by avoiding the lengthy trial process.
- This both helps achieve but also limits P.O.J.

Question 23

Recent and recommended reforms for time

Answer 23

Reforms:
Increase in use of paperless court technology such as electronic filing. Enhances access and adds speed to the process, whilst reducing some costs.

Changes to legislation allowing judges to accept a majority verdict rather than an unanimous verdict for some cases.

Recommended Reforms:

• Abolition of Committal hearings.
• More active and earlier case management by Supreme Court.

Question 24

Reforms- Cultural Factors

Answer 24

Culturally based difficulties such as lack of knowledge of the lag system, language barriers, the failure of the legal system to take differences into account, and cultural misunderstandings have limited the legal system to achieve P.O.J.
Problems during Questioning and Giving evidence:
-language barriers and cultural misunderstandings (such as indigenous people not mentioning the dead, and looking people in the eye) may effect the ability of the courts to achieve P.O.J.
Overrepresentation of Indigenous People:
-indigenous people are significantly overrepresented in the criminal justice system. language and other cultural barriers between the indigenous population and the court personnel and the general public limits the ability of the courts to achieve P.O.J.

Question 25

Recent and recommended reforms for cultural factors

Answer 25

Reforms:
Koori Court
- division of the magistrate’s court for indigenous offenders who have pleaded guilty and undergo sentencing.
-Hearings are less formal.
-Helps achieve P.O.J for indigenous offences.

Use of Interpreters:

• used for people who have a first language other than English.
• provided free of charge by the Magistrate’s court or Office of Public Prosecutions.
• Whilst interpreters are offered for free, they are not always available.
• Interpreters aid in the courts Achieving P.O.J.

Recommended reforms:
-Expansion of the Koori Court into new areas of Victoria, especially at County Court Level, promoting access and fairness.
- Provision of more interpreters across the legal justice system, promoting fairness and equality for those whose first language is not English.
However, funding will be a challenge for both recommended reforms.