Legal Studies U3 AOS1

Question 1

What is criminal law?

Answer 1

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.

Question 2

What is a crime?

Answer 2

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

Question 3

What is a summary offence?

Answer 3

Minor criminal offence usually heard in the Magistrates’ Court.

Question 4

What are some examples of summary offences?

Answer 4

Common assault
Disorderly conduct
Driving offences
Damage to property.

Question 5

What is an indictable offence?

Answer 5

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

Question 6

What are some examples of indictable offences?

Answer 6

Murder
Rape
Kidnapping
Culpable driving causing death.

Question 7

What is an indictable offence heard summarily?

Answer 7

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

Question 8

When can an indictable offence be heard summarily?

Answer 8

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.

Question 9

What is the burden of proof?

Answer 9

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

Question 10

Who has the burden of proof in a criminal case?

Answer 10

The prosecution.

Question 11

What is the standard of proof?

Answer 11

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

Question 12

What is the standard of proof in a criminal case?

Answer 12

Beyond reasonable doubt

Question 13

What is meant by beyond reasonable doubt?

Answer 13

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

Question 14

What is the presumption of innocence?

Answer 14

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

Question 15

What is bail?

Answer 15

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.

Question 16

What are the rights of an accused?

Answer 16

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

Question 17

What is the right to be tried without unreasonable delay?

Answer 17

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

Question 18

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

Answer 18

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).

Question 19

What is the right to silence?

Answer 19

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

Question 20

Why is there a right to silence?

Answer 20

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.

Question 21

What is the right to trial by jury?

Answer 21

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.

Question 22

When does the right to trial by jury apply?

Answer 22

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

Question 23

Why is there a right to trial by jury?

Answer 23

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).

Question 24

What are the rights of a victim?

Answer 24

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

Question 25

What is the right to give evidence using alternative arrangements?

Answer 25

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.

Question 26

What type of cases does the right to give evidence using alternative arrangements apply for?

Answer 26

Sexual offences
Family violence offences
Summary offences involving the use of obscene or indecent language
Summary offences involving sexual exposure.

Question 27

What are some examples of alternative arrangements?

Answer 27

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

Question 28

What are some reasons for the right to give evidence using alternative?

Answer 28

To reduce trauma for victims
Improve a witness’s willingness and ability to give evidence.
Reduce intimidation, improving their ability to present reliable evidence.

Question 29

What is the right to be informed about the proceedings?

Answer 29

Entitles the victims to be provided with information about the case they are involved in, subject to certain limitations.

Question 30

What are some examples of information about the proceedings?

Answer 30

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.

Question 31

What is the right to be informed of the likely release date of an offender?

Answer 31

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.

Question 32

Who can be placed on the Victims Register?

Answer 32

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

Question 33

What are the principles of justice?

Answer 33

Fairness, equality and access

Question 34

What is fairness?

Answer 34

The principle that all people can participate in the justice system and its processes should be impartial and open.

Question 35

What is equality?

Answer 35

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.

Question 36

What is access?

Answer 36

The principle that all people should be able to engage with the justice system and its processes on an informed basis.

Question 37

What is VLA?

Answer 37

Victoria Legal Aid is a government-funded agency that provides free legal information, advice, and free or low-cost legal representation.

Question 38

What are the roles of VLA in assisting the accused?

Answer 38

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)

Question 39

What are the income test requirements?

Answer 39

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

Question 40

What are the means test requirements?

Answer 40

Consider an accused’s income, assets, and expenses to determine whether the applicant meets the required thresholds.

Question 41

What are the roles of VLA in assisting victims?

Answer 41

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)

Question 42

What are Community Legal Centres?

Answer 42

Not-for-profit community organisations that
provide free legal information, advice,
education, and casework services.

Question 43

What are the two types of CLCs?

Answer 43

General and specialist

Question 44

What is a general CLC

Answer 44

A generalist CLC can assist individuals in a particular geographical area and can provide legal services for a broad range of legal matters.

Question 45

What is a specialist CLC?

Answer 45

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.

Question 46

What is the role of community legal centres in assisting accused?

Answer 46

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

Question 47

What is the role of community legal centres in assisting victims?

Answer 47

Free legal aid (information and advice)
Provide duty lawyer services (prioritise based on needs)
Provide legal representation (depending on each CLC, different eligibility)

Question 48

What is a plea negotiation?

Answer 48

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)

Question 49

What are the strengths of a plea negotiation?

Answer 49

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

Question 50

When is a plea negotiation appropriate?

Answer 50

When there are issues with evidence
If the stress/inconvenience is too great on the victims
The accused is willing to plead guilty

Question 51

What are the reasons for a court hierarchy?

Answer 51

Appeals and specialisation

Question 51

What are grounds for appeals?

Answer 51

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)

Question 52

When is a plea negotiation inappropriate?

Answer 52

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.

Question 53

What is original jurisdiction?

Answer 53

The legal power of a court or other authority to hear a case for the first time.

Question 54

What is appelate jurisdiction?

Answer 54

The legal power of a court to review a decision of a lower court or tribunal on appeal.

Question 55

What are the roles of the judge?

Answer 55

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

Question 56

What is the role of a jury?

Answer 56

To deliver a verdict
Follow instructions from the judge
Objectively listen to evidence and assess it
Deliberate until they reach a verdict

Question 57

What is the role of the prosecution?

Answer 57

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

Question 58

What is the role of the accused?

Answer 58

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.)

Question 59

What is a solicitor?

Answer 59

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.

Question 60

What is a barrister?

Answer 60

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.

Question 61

What is a legal practitioner?

Answer 61

A lawyer with an Australian legal practising certificate.

Question 62

Why do we need legal practitioners?

Answer 62

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

Question 63

What does it mean to uphold the rule of law?

Answer 63

Everyone should have access to competent and independent legal advice
The law must be both readily known and available, and certain and clear.

Question 64

What does it mean to prevent an accused from having to personally question witnesses?

Answer 64

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.

Question 64

What does it mean to ensure an accused understands legal proceedings?

Answer 64

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.

Question 65

What does it mean to provide objectivity?

Answer 65

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.

Question 66

What does it mean to help an accused to receive a fairer outcome?

Answer 66

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.

Question 67

What fees might an accused person have to pay?

Answer 67

Legal representation ($200-$1000 p/h)
Witness fees
Appeals
Orders to pay a sum of money to the victim

Question 68

How does the criminal justice system achieve POJ in relation to costs?

Answer 68

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.

Question 69

How does the criminal justice system fail to achieve POJ in relation to costs?

Answer 69

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.

Question 70

How do cultural differences affect criminal cases?

Answer 70

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

Question 71

How do cultural differences affect criminal cases for Indigenous Australians?

Answer 71

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.)

Question 72

How does the criminal justice system combat issues caused by cultural differences?

Answer 72

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.

Question 73

What are the purposes of sanctions?

Answer 73

Rehabilitation, punishment, deterrence, protection, denunciation.

Question 74

What is punishment?

Answer 74

To punish the offender to an extent and in a way that is just in all the circumstances; adequately reflects the crime.

Question 75

What are the two types of detterance?

Answer 75

Specific and general

Question 76

What is specific deterrance?

Answer 76

Discourages the offender themselves from reoffending and committing offences of a similar nature.

Question 77

What is general deterrence?

Answer 77

Discourages the general public from reoffending and committing offences of a similar nature.

Question 78

What is rehabilitation?

Answer 78

The act of restoring an offender to normal life as a law-abiding member of the community after they have engaged in criminal activity.

Question 79

What are some examples of sanctions that prioritise rehabilitation?

Answer 79

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

Question 80

What is denunciation?

Answer 80

Sending a public message that an offender’s behaviour is not okay.

Question 81

What is protection?

Answer 81

Ensuring offenders do not pose a significant risk to the welfare and safety of their victims and broader society.

Question 82

What is imprisonment?