Outcome 1 criminal Flashcards

Question

Eligibility CLC

Answer 1

-the type of legal matter - if other assistance is available (such as VLA) - whether the person has a good chance of success - whether that CLC can assist - It is important to note that many CLCs only help minor criminal matters. - They also help people who live within their community.

Answer 2

STRENGTH: - free legal information is available on many CLC web - some legal information is provided in different lang and some CLCs offer free interpreter services - CLCs provide information to help educate the community about processes + their rights WEAKNESSES: - CLCs have noted that there is insufficient funding to be able to help everyone who needs it. therefore "service gap" which means some people are not receiving - many CLCs do not assist people charged with an indictable offence and many are limited to assisting people - CLCs may not have enough staff or volunteers to meet the needs of accused people and victims of crime

Answer 3

- Ensures certainty of the outcome of a criminal case →the accused may plead guilty to the charges thus ensuring certainty of outcome - save on costs, time and resources → early plea it avoids the need for a trail or hearing and therefore saves the court and the prosecution resources - prompt resolution to a criminal case w/o stress trauma and inconvince of a criminal hearing / trial

Answer 4

*whether the accused is willing to cooperate in the investigation or prosecution of co-offenders, or offenders of other crimes * the strength of the evidence, including the strength of the prosecution’s case and of any defences * whether the accused is ready and willing to plead guilty * whether the accused is represented. The prosecution may be less willing to negotiate with a self-represented party who may not understand the processes * whether the witnesses are reluctant or unable to give evidence, which would jeopardise the prosecution’s ability to achieve a guilty verdict * the possible adverse (negative) consequences of a full trial, including the stress and inconvenience on victims and witnesses * the time and expense involved in a trial, particularly the costs associated with running the case * the views of the victim

Answer 5

STRENGTHS: - avoids full hearing + trail and helps w/ the prompt determination of criminal cases - saved trauma inconvenience and distress of trial - prosecution will consult w/ victims and may take their views into consideration - saving cost + resources - certainty of outcome WEAKNESSES: - do not need to be disclosed and can be held privately. lack transparency - negotiation process may be seen as the prosecutor avoiding the need to prove the case beyond reasonable doubt, which is a fundamental principle of our justice system and upholds the presumption of innocence - a self rep party may feel pressured into accepting the deal

Answer 6

Different courts specialise in different types of cases (e.g., Magistrates’ Court for minor cases, County and Supreme Courts for serious offences). This allows judges and courts to develop expertise in specific areas of law.

Answer 7

SUPREME COURT OF APPEAL: specialises in hearing appeals for indictable offences+ sentencing principles SUPREME COURT TRIAL DIVISION: has specialised knowledge on indictable offences particularly murder and manslaughter and is well developed in trial and evidence procedures. COUNTY COURT: has developed specialisation in particular indictable offences such as drug offences sexual offences + theft MAGISTRATES COURT: is an expert on summary offences and committal proceedings. They also have more experience dealing w/ people who don't have rep

Answer 8

IF there are grounds for appeal, a party who is dissatisfied with a decision can appeal to a higher court to challenge the decision. A party who appeals is known as the appellant and the other party is the respondent. This system allows for fairness and for any mistakes to be corrected. If there were no higher courts, people would not be able to challenge unfair or incorrect decisions.

Answer 9

Question/Rule of Law- the law has not been followed e.g. inadmissible evidence was allowed Conviction- The accused believes the jury made a mistake Severity- the prosecution can appeal on leniency if the sentence was too light and the offender can appeal if a sentence is too severe

Answer 10

STRENGTH: - specialisation allows more efficient processes + resources - allows appeals to be made if there is an error WEAKNESSES: - confusing for people who don't understand the criminal justice system - does not allow for an automatic right to appealoffenders need to establish grounds for appeal. This can restrict the ability of accused people to access the appeal hierarchy

Answer 11

→ the judge and magistrates oversee the case to ensure procedural fairness. they make sure everything is carried out properly and all parties are treated fairly. 1. ACT IMPARTIALLY: ensures a fair trail. there cannot be a belief that a judge is biased for any reason (apprehended bias). there can be no prior relationship of any kind w/ judge / party 2.DECIDE AN OUTCOME - magistrates decides an outcome as there is no jury - in higher courts jury determines guilt therefore judge has to give directions to jury+ sum the case 3. SENTANCE AN OFFENDER: If the accused is found guilty or pleaded guilty, the parties (prosecutor and accused) will make submission about sentencing. The judge/magistrate will then hand down a sentence. In making their decision, they will hear from both parties and consider any victim impact statements. This ensures fairness by allowing everyone to share their views.

Answer 12

STRENGTH: - they do not overly interfere in trail or help any party. no party is disadvantaged or advantaged - able to assist self rep accused people and can adjust the trial processes to accommodate vulnerable people WEAKNESSES: - risks that they have apprehended bias that impacts decision-making such as when they are fatigued - less representation judges have less diversity this could make people feel less comfortable - most experienced but cant interfere

Answer 13

1. OBJECTIVE: must be unbiased and open minded and must put aside any preconceived opinions about the accused. → must not have any connection to accused they must decide on facts and be convinced beyond reasonable doubt 2. LISTEN TO EVIDENCE: Evidence can be hard to understand and follow. Jurors can take notes, however they need to keep up and pay attention! Juries have been dismissed in the past because someone has fallen asleep-not all cases are interesting! Jury members cannot research the case and can face penalties. The trial would also be declared a mistrial. 3. UNDERSTAND DIRECTIONS: At the end of a trial, the judge will summaries the case for the jury. The jury are required to listen to the judge and ask any questions for any legal points they didn’t understand. 4. DELIVER A VERDICT: The jury must take part in deliberations (basically like a debate) in the jury room. There should be no pressure to make a certain decision from other jury members. Deliberations are confidential so that jury members can be open about their views. They must decide on the facts of the case. → must aim to reach a unanimous vote all 12 members sometime 11/12 is accepted not in murder

Answer 14

STRENGTH: - jury system allows members of the jury to participate in criminal justice system processes and ensures that justice is 'seen to be done' - collective decision making can reduce the possibility of bias as it means any personal subconscious biases can be identified during deliberation process and addressed by the group WEAKNESSES: - Jury members may have unconscious biases or prejudices, and as they do not give reasons for their decisions, there is no way of knowing whether bias played a role in their decision-making. - A number of people cannot participate in a jury because they are ineligible, excused or disqualified. Therefore, it is possible that a large section of the community is not represented. - Jury trials may result in further delays as rules, evidence and processes need to be explained to the jury, and a jury may require some time to deliberate

Answer 15

1. DISCLOSING INFO: The Prosecution must disclose all relevant information to the accused. The accused must be informed of all the evidence that is to be used against them such as the names and statements of the witnesses. The prosecution must even disclose previous convictions of witnesses as this attests to if the witness is credible or not. 2.PARTICIPATE IN TRAIL: The prosecutor has the burden of proof which means they must present the case. This includes the following; Present the opening address- introduces what the issue is and what the evidence will be Presents evidence- calls on and examines witnesses and expert witnesses such as doctors. Cross examination- the prosecution will ask questions to any witnesses called on by the accused Closing address- the prosecutor will summarise the facts of the case. 3.SUBMISSION ABOUT SENTANCING: If the accused pleads guilty or is found guilty, the accused will have a plea hearing. The parties are able to make submissions about sentencing. The prosecutor can inform the court of relevant laws and matters relevant to sentencing. The prosecutor will assist the court in determining a sentence.

Answer 16

1. PARTICIPATE IN TRAIL/HEARING * presenting their opening address. Similar to the prosecutor, they will summarise the evidence, but should not include any material that is not relevant or will not be called as evidence (like the prosecutor, an accused must be given leave in the Magistrates’ Court to make an opening and closing address) * presenting evidence that supports their case. This will normally be done through calling witnesses. The accused may also give evidence at any stage * cross-examining any witnesses called by the prosecution * making a closing address after the prosecutor gives their closing address. The closing address should be limited to the evidence. 2. MAKING SUBMISSIONS ABOUT SENTANCING: if found guilty or pleading guilty the accused would want the lowest possible sentence they are also entitled to make submissions about sentencing w/o misleading court

Answer 17

STRENGTH: - The accused has no obligation to present evidence or do or say anything in the trial. - The prosecutor has special obligations to disclose all relevant matters to the accused. The accused must also not seek to change witnesses without notice to the accused. This ensures there is no ‘trial by ambush’ - both parties have opportunities' to present their cases. including making opening + closing addresses WEAKNESSES: - the processes involved are complex and difficult to understand w/o a lawyer making it difficult for self rep. accused people - ‘party control’ and the right to silence may mean that the truth does not come out. For example, the accused may not say or do anything. This is particularly so in situations where the accused is the only person that knows what happened.

Answer 18

Anyone charged with a serious criminal offence requires legal practitioners to represent them. This is to ensure that the accused has an adequate opportunity to have a fair trial, question the evidence against them and ensure no mistakes are made during the trial. → type of lawyer who helps people w/ legal issues * a person who is representing themselves lacks the skills and experience to navigate the criminal justice system and test the evidence. This includes being able to navigate procedures such as plea negotiations, trial processes and the examination of witnesses WHY THEY ARE NEEDED: * a self-represented accused person does not generally have the objectivity to be able to make the right decisions. They may be overly invested or emotional about the outcome, and not have the ability to ‘stand back’ and assess the risks and the facts of the case * for traumatic or difficult cases, it avoids a situation where the accused is directly questioning witnesses, such as victims of crime, which can risk a victim being re-traumatised * although the court and judges can assist self-represented accused people to some extent in understanding the processes, this cannot extend to advocating on behalf of the self-represented accused person.

Answer 19

STRENGTH: - Legal practitioners have objectivity in being able to make decisions in the criminal case, such as whether to accept an agreement in a plea negotiation. Self represented accused people do not have that objectivity. - Legal practitioners can help avoid delays that may arise with self-represented accused people - Legal practitioners are experts who can help the accused person navigate the criminal justice system. WEAKNESES: - Not all legal practitioners are equal or have the same level of experience and skills. Some legal practitioners are more experienced than others, which may impact on the quality of the legal services. - Not everyone can afford legal representation, so some people may be left to represent themselves. However, often self represented accused people do not have the necessary skills, experience or objectivity to be able to make the right decisions, so there may be a risk that they do not get a fair trial.

Answer 20

Costs can be a significant barrier, particularly for the accused if they cannot afford a lawyer. Cost can also impact the victim if they require legal assistance and advice. The main costs a person has to face is legal representation, which impacts the accused the most. If they cannot afford a lawyer, they can be disadvantaged. An accused who cannot afford a lawyer can go to VLA for legal representation or their local CLC for advice and information. An accused may be able to find a lawyer ‘pro bono’. If these options aren’t available, they may have to represent themselves which places additional pressure on the courts and the parties.

Answer 21

VLA- aims to provide legal representation for those who cannot afford it. However, not everyone is eligible for legal aid. CLCs- aims to provide legal advice and information, however, they are limited in their ability to help Committal proceedings- filter out weak cases to avoid unnecessary trials. This helps reduce costs, however, a vast majority of cases go to trial plea negotiations- help avoid the need for trial and therefore additional costs Each year 8.5 million Australians have a legal problem, but fewer than half access help. This puts people at a disadvantage, especially people who may be na vulnerable position such as the homeless, young people and people with disabilities.

Answer 22

An accused person has the right to be tried without unnecessary delay. Due to factors such as locating and interviewing witnesses, finding evidence, and determining what charges should be laid, the time of trials can vary. The more complicated a case is, the longer it will take. “As of 1 July 2022, the County Court of Victoria estimates that once initiated a case will take between 14 and 16 months to be ready for trial”.

Answer 23

plea negotiations- can reduce delays as the case is determined more quickly and saves time, stress and money. (Trials can take months or years so pleading guilty can save a significant amount of time) Technology- having remote hearings can help avoid delays and travel time and costs Judge alone trials- during covid, temporary legislation allowed for judge alone trials to avoid having juries which also saved time.

Answer 24

* language barriers – there are subtle differences in the way language is used by some First Nations people that can cause misunderstandings. For example, ‘kill’ may mean to hit someone, probably causing injury, but not necessarily ending their life * direct questioning – the question-and-answer method of obtaining evidence, which is often the way evidence is obtained in criminal matters, can be inappropriate for some First Nations witnesses who are not used to this method. In many First Nations cultures directness is impolite. * body language – direct eye contact is seen as disrespectful to some First Nations people, who may try to limit or avoid it by looking down or to the side. This may make First Nations people appear uninterested or unreliable to those who do not understand these customs * cultural taboos – within some First Nations cultures it is considered taboo to speak of certain things, such as the names of deceased people, or someone the community holds in disgrace. * lack of understanding of court procedures – some First Nations peoples may not understand why they have to tell the same story over and over, such as during examination-in-chief and then cross-examination. In an attempt not to offend the authorities, they may think they are required to change their story for each telling. This makes it easier for the barrister to make a witness appear inconsistent

Answer 25

1. KOORI COURT: The Koori Court is one measure taken to address cultural barriers in our legal system. The Koori Court is a division of the Magistrates and County Court for sentencing - not determining guilt. It aims to represent First Nation cultural practices and encourage the participation of the accused with their support of their Elders and their family. →To be eligible to use the Koori Court, the accused must be First Nations, they must plead guilty and live within or been charged within the area of the Koori Court. 2. Free interpreters for those accused of committing a crime. However, access to interpreters differ from court to court. 3. Information from the Courts, VLA and CLCs are offered in different languages.

Answer 26

When an offender has done something unacceptable, they must be penalised so the victim(s) and community feel that justice has been achieved. It is also important to ensure that people do not take justice into their own hands. E.g. Prison punishes offenders as it deprives them of their liberty

Answer 27

Sometimes it is necessary to remove the offender from the community to physically prevent them from reoffending and safeguard the community. Note: CCO’s can also achieve protection as certain conditions may prevent the offender from going to certain places. In some cases, the court can even impose an indefinite sentence.

Answer 28

Deterrence aims at discouraging people from committing similar crimes. General Deterrence- to deter others from committing the crime as they see the consequences for that crime. Particularly important for violent crimes that have impacted the community. Sentence should be communicated to the public. Specific Deterrence- to discourage a particular offender from committing a crime in the future. Prior convictions is considered as well as remorse.

Answer 29

This refers to the disapproval of the court. Sanctions may show that the community condemn the act of the offender. For example, for cases such as family violence cases or hate crimes, the court may show their denunciation through sentencing and re enforcing community sentiments. The court may need to decide which is more important, rehabilitation or showing the community’s disapproval.

Answer 30

Rehabilitation is designed to address the underlying causes of offending, for example drug or alcohol addiction. Therefore, the rehabilitation would address the addiction. The aim of rehabilitation is to help the offender change their attitude and behaviour to prevent reoffending. This is the goal as it would prevent further crimes and benefit the community.

Answer 31

The tendency of a convicted criminal to reoffend - in vic 37.0% of prisoners released during 2019-20 returned to prison with 2 yrs (2021-22). this rate is slightly lower than the aussie rate 42.7%. the northen territory had the highest rate at 56.7% - more than 60% of australians prison population has been previously incarcerated.

Answer 32

A fine is an amount of money ordered by the court to be paid by the offender. A fine can be issued with another sanction. The amount of the fine will depend on the maximum penalty for that offence. Fines are expressed in levels. 2 is the highest (level 1 is a crime such as murder in which a fine would not be appropriate) and 12 is the lowest. Each level of a fine refers to a penalty unit. Level 2 fine= 3,000 penalty units Level 12 fine= 1 penalty unit one penalty unit= 192.31

Answer 33

--> serves the community w/ conditions attached to the order A CCO is a non custodial, supervised sentence served in the community. It is intended to be flexible to suit the offender and will have conditions attached. CCOs give offenders the opportunity to address their criminal behaviour, receive treatment, education, personal development whilst remaining in the community. A CCO can be imposed for up to 2 years in the Magistrate Court and no more than 5 years in a Victorian Court. A CCO can be combined with a fine or up to a year in prison (CCO completed after prison sentence) --->rehab deterrence denunciation

Answer 34

A court can only impose a CCO if the offender has been found guilty and convicted of a crime by more than five penalty units. The Court will receive a pre-sentence report and must be satisfied that a CCO is appropriate for the offender The offender must consent to the CCO CCOs cannot be used in category 1 (muder, sexual offences, some drug offences) and category 2 (manslaughter, kidnapping, arson causing death). Category 2 may be acceptable if the offender has mental impairment

Answer 35

In some cases, imprisonment may be the only appropriate sanction Prison should be the last resort as it is the most severe sanction People sent to prison will be “removed from society and lose their freedom and liberty” Prison terms are expressed in levels from 1-9. 1 is the most serious (life in prison), 9 is the least (6 months in prison). If sentences for 2 or more years, the offender will receive a non parole period --> prison is designed to achieve all the purposes of sanctions however cannot achieve rehab

Answer 36

Terms of imprisonment can be served concurrently or cumulatively Concurrent - A concurrent sentence runs at the same time as another sentence Cumulative - A cumulative sentence is served straight after another sentence - This is given for particular offences such as some drug offences and sexual offences, if the offender committed an offence on bail/parole etc

Answer 37

If a person is convicted by the Supreme or County Court for a serious offence, they may get an indefinite sentence. Examples of such offences include; murder, child homicide, threats to kill, rape, sexual offences of a child under 16 etc. The court must consider the danger they pose to the community. Their character, health, age, nature of the offence etc. The court will review an indefinite sentence periodically. Unless the court considers the offender a danger to the community, the indefinite sentence will be discharged, and the offender will do a 5 year reintegration program

Answer 38

Aggravating factors are factors that MAY lead to an increased sentence. Examples include; * the use of violence, explosives or a weapon when committing the offence * where the offending was planned or premeditated * the nature and gravity of the offence (e.g. if the victim suffered a particular type of brutality or cruelty, or the offence involved family violence, or the offence was unprovoked) * any vulnerabilities of the victim (such as having a disability or being very young, old or frail) * the offender being motivated by hatred or prejudice against a group of people with common characteristics * the offence taking place in front of children, or seen by them * a breach of trust by the offender towards the victim (e.g. the offender was in a position of trust such as a parent who has abused a child or a teacher who has committed a crime against a student) * prior convictions of the offender * the offence occurred while the offender was on a CCO, on parole or on bail. The courts have long established that a lack of remorse is not an aggravating factor – but remorse can act as a mitigating factor.

Answer 39

facts or circumstances about offender or the offence that can lead to less severe sentence --> factors that may lead to a reduced sentence * the offender showed remorse (this can often be demonstrated through the offender’s conduct after the offence, such as cooperating with police, pleading guilty early, or general behaviour at court hearings the offender has no prior criminal history or is of good character * the offender was acting under duress * the offender has shown efforts towards rehabilitation while awaiting sentencing, or has good prospects of rehabilitation * the offender was under personal strain at the time or they have a unique background, which means a lighter sentence should be imposed (e.g. they have had a difficult and violent childhood) * the effect that prison may have on the offender (e.g. courts have identified that prison may not be suitable for offenders with serious mental health issues) * the injury or harm caused by the offence was not substantial, or there was no risk to any people * the offender was young, or had some disability that made them not fully aware of the consequences * the offender pleaded guilty early (described further below).

Answer 40

If the offender pleads guilty early, this CAN act as a mitigating factor This is to encourage the accused to plead guilty early and avoid an unnecessary trial. The benefits the justice system as it saves time, costs and individuals the stress/trauma of a trial. Generally, the earlier the guilty plea is given, the greater the reduction in sentence.

Answer 41

ACCUSED: 1. right to be tried without unreasonable delay 2. the right to silence 3.the right to trial by jury VICTIM: 1.right to give evidence using alternative arrangements 2.the right to be informed about the proceedings, 3. the right to be informed of the likely release date of the offender