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Legal Studies U3 AOS1 Flashcards

1
Q

What is criminal law?

A

An area of law that aims to protect society from harm by defining prohibited behaviours and outlining sanctions for those who participate in illegal conduct.

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2
Q

What is a crime?

A

An act or omission that violates an existing law, causes harm to an individual, or society as a whole, and is punishable by law.

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3
Q

What is a summary offence?

A

Minor criminal offence usually heard in the Magistrates’ Court.

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4
Q

What are some examples of summary offences?

A

Common assault
Disorderly conduct
Driving offences
Damage to property.

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5
Q

What is an indictable offence?

A

A criminal offence that is serious in nature and generally heard by a judge and jury in the County or Supreme Court.

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6
Q

What are some examples of indictable offences?

A

Murder
Rape
Kidnapping
Culpable driving causing death.

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7
Q

What is an indictable offence heard summarily?

A

Less serious indictable offences that can be heard, similar to summary offences, in the Magistrates’ Court.

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8
Q

When can an indictable offence be heard summarily?

A

The offence is not punishable by a maximum term exceeding 10 years of imprisonment
The court agrees and determines it is appropriate
The accused consents to having their offence(s) heard summarily.

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9
Q

What is the burden of proof?

A

The responsibility of a party to prove the facts of a case.

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10
Q

Who has the burden of proof in a criminal case?

A

The prosecution.

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11
Q

What is the standard of proof?

A

The degree to which the facts of a case must be proven in court.

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12
Q

What is the standard of proof in a criminal case?

A

Beyond reasonable doubt

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13
Q

What is meant by beyond reasonable doubt?

A

The judge and/or jury can come to no other logical conclusion except that the accused is responsible for the crimes.

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14
Q

What is the presumption of innocence?

A

The right for an accused person to be presumed
innocent until proven, beyond a reasonable doubt, guilty.

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15
Q

What is bail?

A

The process whereby a person who has been arrested and charged with a crime is released from police custody and allowed in the community whilst awaiting their trial. Often involves a surety.

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16
Q

What are the rights of an accused?

A

The right to be tried without unreasonable delay
The right to silence
The right to trial by jury.

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17
Q

What is the right to be tried without unreasonable delay?

A

The right to have a case heard in a timely manner unless the court considers delays to the trial to be ‘reasonable’.

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18
Q

Why is there a right to be tried without unreasonable delay?

A

To ensure that witness testimonies are reliable (don’t allow their memory to fade).
Prevent unneccessary stress on the accused, victims, and their families.
Jurors may become biased if the case has significant media attention.
Long delays may increase legal costs for an accused (lawyer fees).

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19
Q

What is the right to silence?

A

The right that allows a person to remain silent when questioned or asked to supply information by a person in authority.

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20
Q

Why is there a right to silence?

A

The right to silence reflects the burden of proof given that there is no responsibility for them prove their innocence (innocent until proven guilty).
Prevent accused people from making heat-of-the-moment statements which may be incriminating.
Protects an accused persons privacy.
To reduce the power imbalance between the prosecution and the accused.

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21
Q

What is the right to trial by jury?

A

The right to have their guilt, for the offence they have been accused of, to be determined by impartial members of the community rather than a single judge.

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22
Q

When does the right to trial by jury apply?

A

Indictable offences with no guilty plea, since a jury will decide the verdict.

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23
Q

Why is there a right to trial by jury?

A

Unbiased verdict, since jurors are required to have no connections to either the prosecution or the accused and cannot have prior knowledge about the facts of the case.
Will likely result in lawyers using clear, plain English instead of legal jargon when presenting evidence.
More accurately reflect a cross-section of the community than the judges who adjudicate criminal cases (diversity).

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24
Q

What are the rights of a victim?

A

The right to give evidence using alternative arrangements
The right to be informed about the proceedings
The right to be informed of the likely release date of the offender

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25
What is the right to give evidence using alternative arrangements?
The right to give evidence using alternative arrangements victims or witnesses of certain crimes in Victoria to give evidence in a non-standard way that aims to be less traumatic for the victim.
26
What type of cases does the right to give evidence using alternative arrangements apply for?
Sexual offences Family violence offences Summary offences involving the use of obscene or indecent language Summary offences involving sexual exposure.
27
What are some examples of alternative arrangements?
Giving evidence via closed-circuit television (CCTV) Using a screen to remove the accused from the witness’ line of vision Allowing a person to be beside the witness while they are giving evidence to provide emotional support Closing the court to everyone except specified people while the witness is giving evidence Requiring legal practitioners to not wear a robe or requesting them to remain seated during examination-in-chief and cross-examination
28
What are some reasons for the right to give evidence using alternative?
To reduce trauma for victims Improve a witness’s willingness and ability to give evidence. Reduce intimidation, improving their ability to present reliable evidence.
29
What is the right to be informed about the proceedings?
Entitles the victims to be provided with information about the case they are involved in, subject to certain limitations.
30
What are some examples of information about the proceedings?
Whether any charges are withdrawn or changed, and the reasons why. Whether bail has been granted to the accused The date and time of the trial Whether an appeal has been lodged following a trial and, if so, details about the grounds for appeal. If the accused has been found guilty or not guilty Any sanction imposed by the court if the verdict is guilty.
31
What is the right to be informed of the likely release date of an offender?
The right to victims of violent crimes where they can apply to be registered on the Victims Register and will be informed about the likely release date of an offender who has been imprisoned.
32
Who can be placed on the Victims Register?
Anyone who is, or their family member is, a victim of a criminal act of violence. Examples of these acts are: Culpable driving Kidnapping Stalking Threats to kill Sexual offences Murder or manslaughter Assault Armed robbery Family violence
33
What are the principles of justice?
Fairness, equality and access
34
What is fairness?
The principle that all people can participate in the justice system and its processes should be impartial and open.
35
What is equality?
The principle that all people engaging with the justice system and its processes should be treated in the same way. If the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow all to engage with the justice system without disparity or disadvantage.
36
What is access?
The principle that all people should be able to engage with the justice system and its processes on an informed basis.
37
What is VLA?
Victoria Legal Aid is a government-funded agency that provides free legal information, advice, and free or low-cost legal representation.
38
What are the roles of VLA in assisting the accused?
Provide free legal information (to everyone) Provide free legal advice (prioritises vulnerable groups such as children, Indigenous Australians, people with a disability, people who can't speak english) Provide duty lawyer services (child protection, youth crime, adult summary crime, intervention orders, family matters, some civil matters, such as Mental Health Tribunal hearings... adults not in custody must satisfy income test) Provide grants of legal assistance (must satisfy means test and be likely to succeed)
39
What are the income test requirements?
An accused will satisfy the income test if they can either: Demonstrate their income is limited Show a current Centrelink Benefit Card or Pensioner Concession Card
40
What are the means test requirements?
Consider an accused’s income, assets, and expenses to determine whether the applicant meets the required thresholds.
41
What are the roles of VLA in assisting victims?
Provide free legal information (to everyone) Provide a Victims Legal Service (specialist advice phone line that provides legal information and advice) Provide duty lawyer services (prioritised based on certain criteria, whereby children and adults with a disability have higher priority) Provide grants of legal assistance (strict eligibility requirements considering factors such as the merits of the matter and the means of the recipient)
42
What are Community Legal Centres?
Not-for-profit community organisations that provide free legal information, advice, education, and casework services.
43
What are the two types of CLCs?
General and specialist
44
What is a general CLC
A generalist CLC can assist individuals in a particular geographical area and can provide legal services for a broad range of legal matters.
45
What is a specialist CLC?
Can provide legal services regarding a specific area of law or for a particular group of people. For example, the CLC may focus on youth law and providing legal support to young people, or specialise in consumer law and dealing with such matters.
46
What is the role of community legal centres in assisting accused?
Offer free legal information in person and online (everyone) Offer free legal advice to an accused person Provide legal representation RARELY Support an accused person to apply for legal assistance from VLA
47
What is the role of community legal centres in assisting victims?
Free legal aid (information and advice) Provide duty lawyer services (prioritise based on needs) Provide legal representation (depending on each CLC, different eligibility)
48
What is a plea negotiation?
When the prosecution offers an incentive to the accused person in return for them pleading guilty (e.g reduction in charge to a less serious offence, some charges dropped if there are multiple)
49
What are the strengths of a plea negotiation?
Benefits the community by ensuring a conviction whilst saving public resources Benefits victims by removing the requirement to give evidence at trial and risk acquittal Benefits the prosecution by allowing them to allocate resources to other matters Benefits the court and court users by reducing caseloads and therefore limiting delays
50
When is a plea negotiation appropriate?
When there are issues with evidence If the stress/inconvenience is too great on the victims The accused is willing to plead guilty
51
What are the reasons for a court hierarchy?
Appeals and specialisation
51
What are grounds for appeals?
Appealing the sanction imposed (excessive or does not adequately reflect the severity of the crime committed) Appealing on a question of law (the legal principles or legislation have been incorrectly applied or interpreted) Appealing the conviction (verdict)
52
When is a plea negotiation inappropriate?
The accused is not prepared to plead guilty to any charges The victim or their family opposes The alleged offending is serious to the point that a conviction for lesser charges is not in the public interest and the perception that the accused ‘got off lightly’ will be too great.
53
What is original jurisdiction?
The legal power of a court or other authority to hear a case for the first time.
54
What is appelate jurisdiction?
The legal power of a court to review a decision of a lower court or tribunal on appeal.
55
What are the roles of the judge?
Be an impartial third party (fairness) Enforce rules of evidence and procedure equally (who gets to speak when, what order do things occur in, what evidence is allowed) Case management (directions, what evidence are they using, lists of witnesses) Decides questions of law (could include explaining or interpreting meaning of word in legislation) Direct the jury Sentence guilty offenders
56
What is the role of a jury?
To deliver a verdict Follow instructions from the judge Objectively listen to evidence and assess it Deliberate until they reach a verdict
57
What is the role of the prosecution?
Work on behalf of the state (prove an offender is guilty) Develop arguments based on evidence Engage with the defence through processes such as plea negotiations
58
What is the role of the accused?
Present evidence and arguments to the jury opposing a conviction Test the evidence of the prosecution (cross-examine) Enter into a plea Be present at all court proceedings related to the case Source their own legal support (legal aid, legal rep, etc.)
59
What is a solicitor?
A lawyer who advises clients about legal matters, prepares legal documentation for trial, communicates with the other party’s legal representation, researches the relevant laws, and when required engages the services of a barrister and briefs them to represent a client in court.
60
What is a barrister?
A self-employed lawyer who regularly appears in court and is responsible for representing a party in a trial by making legal arguments, questioning witnesses, and summarising the case to the judge and/or jury.
61
What is a legal practitioner?
A lawyer with an Australian legal practising certificate.
62
Why do we need legal practitioners?
To uphold the rule of law To ensure an accused understands legal proceedings To prevent an accused from having to personally question witnesses To provide support To provide objectivity To help an accused to receive a fairer outcome
63
What does it mean to uphold the rule of law?
Everyone should have access to competent and independent legal advice The law must be both readily known and available, and certain and clear.
64
What does it mean to prevent an accused from having to personally question witnesses?
Where an accused has no legal representation, they will have to question witnesses themselves which can be traumatic. There are also strict rules around what you can and can ask a witness about, which may be hard for an accused to navigate.
64
What does it mean to ensure an accused understands legal proceedings?
Help explain and guide an accused through criminal processes such as: How a criminal proceeding is commenced Committal proceedings Directions hearings Which written pleas of the guilty may be accepted The manner in which evidence must be presented How to appeal a criminal conviction.
65
What does it mean to provide objectivity?
An accused is personally involved in the case and therefore will be affected emotionally, so they may struggle to deal with evidence objectively. Legal practitioners, however, look at the facts of the case from an impartial point of view. This can allow a stronger defence case to be built without the interference of emotions.
66
What does it mean to help an accused to receive a fairer outcome?
Legal practitioners have much more expertise in the law, and therefore are able to present cases in a better light than those self-representing. This can ensure: An accused is not wrongfully found guilty. An accused found guilty receives an adequate sanction that may be less severe due to mitigating factors. An accused is able to appeal their conviction or sentence if they feel they were wrongly found guilty or inappropriately sentenced.
67
What fees might an accused person have to pay?
Legal representation ($200-$1000 p/h) Witness fees Appeals Orders to pay a sum of money to the victim
68
How does the criminal justice system achieve POJ in relation to costs?
Independent judges ensure the rules of evidence and procedure are followed, promoting fairness even if an accused was unable to afford representation. VLA can sometimes provide legal representation for those who can't otherwise afford it. If interpreters are needed in the courts, the prosecution organises and pays for this.
69
How does the criminal justice system fail to achieve POJ in relation to costs?
If an accused person cannot afford legal representation, they may have to represent themselves. The quality of the presentation of the case, usually correlated with the price of representation, may influence the outcome, not solely the facts and the law. Many individuals lose their employment and income if imprisoned and therefore, cannot pay compensation or restitution orders to victims, which may be seen as unfair to victims. An accused person may plead guilty to a criminal offence, even though they know they are not, just because they are unable to afford the expense associated with defending a criminal case in the courts.
70
How do cultural differences affect criminal cases?
A number of different groups within society may have difficulty engaging with the criminal justice system due to their cultural background. E.g. Limited knowledge about Victoria’s legal system Limited English communication skills Ingrained mistrust toward the police and courts due to past experiences Fear of the cultural repercussions associated with pursuing legal action
71
How do cultural differences affect criminal cases for Indigenous Australians?
Over-representation in the criminal justice system and within prison systems around Australia (In 2020, First Nations peoples made up just 3% of the Australian population yet 29% of the adult prison population.) Limited trust in the criminal justice system due to a history of dispossession and social exclusion by governments. Different cultural practices that make it inappropriate to discuss certain subject matter when giving evidence or being questioned (e.g seeing or hearing about deceased persons) Differences in communication (e.g. ‘Deadly’ can mean that something is good or excellent, instead of meaning ‘going to kill’ as it would in English.)
72
How does the criminal justice system combat issues caused by cultural differences?
The presumption of innocence and the high standard of proof required for a criminal conviction aims to protect those who have difficulty presenting evidence or a defence, as they do not need to prove their innocence. Interpreters are available for all accused persons, and the onus to pay for and arrange an interpreter is on the courts, as opposed to the accused. The Koori Court is an option for First Nations peoples if they plead guilty, as it can provide culturally-relevant sentencing practices that are used when determining the sentence of an offender.
73
What are the purposes of sanctions?
Rehabilitation, punishment, deterrence, protection, denunciation.
74
What is punishment?
To punish the offender to an extent and in a way that is just in all the circumstances; adequately reflects the crime.
75
What are the two types of detterance?
Specific and general
76
What is specific deterrance?
Discourages the offender themselves from reoffending and committing offences of a similar nature.
77
What is general deterrence?
Discourages the general public from reoffending and committing offences of a similar nature.
78
What is rehabilitation?
The act of restoring an offender to normal life as a law-abiding member of the community after they have engaged in criminal activity.
79
What are some examples of sanctions that prioritise rehabilitation?
Community corrections orders (CCOs... may involve alcohol exclusion, a curfew, treatment for drug addiction, etc.) Drug treatment orders (DTOs... imposed by the Drug Court) Court secure treatment orders
80
What is denunciation?
Sending a public message that an offender's behaviour is not okay.
81
What is protection?
Ensuring offenders do not pose a significant risk to the welfare and safety of their victims and broader society.
82
What is imprisonment?

Legal Exam (9 decks)

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