Pre Criminal Flashcards
Purpose of pre criminal
Purpose of criminal pre trial procedures
Assist the police
Protect the rights of the accused - Right to remain silent and innocent until proven guilty
Provide rights to the police to facilitate police investigation
Provide an opportunity for the accused to be released pending trial, but this right can be denied in certain circumstances
Determine whether a trial should proceed - is the evidence of sufficient weight to support a conviction by a jury at trial
Determine if the accused wished to plead guilty or not guilty, provide the accused with the opportunity to plead guilty early and thereby receive a lighter sentence. This is also beneficial to the legal system because it reduces the number of trials and speeds up the system.
What is bail
Bail refers to the release of custody of a person accused of a crime and awaiting a hearing or trial, on an undertaking that the person will attend the hearing or trial. This often involves their own undertaking (a promise), or in some cases depositing a sum of money to ensure they appear in court or providing a surety that they will appear in court
The main aim of bail is allow the accused person to go free until the hearing or trial as a person is presumed innocent until proven guilty. Therefore, bail upholds the presumption of innocence. Another purpose is that it allows the person time out of custody to prepare their case
Bail can be granted by a police officer at the police station where the person is charged, a magistrate during a bail hearing in the magistrates court and a bail justice
If bail is not granted, the accused can appeal to a higher court for a bail hearing
Bail may be refused if a person is charged with murder or treason, charged with drug trafficking, already in custody for another crime, or considered to pose an unacceptable risk to society or is likely to abscond, commit an offence while on bail, and endanger the safety of members of public
Some conditions of bail include surrendering your passport and regularly reporting to a police station
What is remand
Remand refers to when a person is held in custody awaiting a trial, during a trial or awaiting sentence as they have been denied bail
The purpose of remand is to protect the community against the actions of an accused person the court believes may reoffend, inflict harm, commit further crimes or fail to appear before the courts for justice to be served
Someone who is refused bail will be held on remand until the case comes to trial or bail is granted in future
A person shouldn’t be held in remand for more than 3 months for sexual offences or 6 months for other offences before a committal hearing is commenced
If a person is held on remand and then found guilty the time on remand will be deducted from the prison sentence given. Someone who is found not guilty is not usually entitled to compensation for the time in prison. Therefore bail is usually granted.
What are committal hearings
Committal hearing is a hearing held in the magistrates court for an indictable offence not being heard summarily to assess whether a Prima facie case exists, that is, whether the evidence is of sufficient enough weight to support a criminal conviction by jury at trial at a superior court
The aim of committal hearings is to
- Determine whether a Prima facie case exists, that is, whether the evidence is of sufficient enough weight to support a criminal conviction by jury at trial in a superior court
- Clarify the issues prior to attending trial and thereby avoid taking a matter to trial when the evidence is flimsy saving the time and resources of a higher court
- Allow the accused to gauge the evidence against them and thus determine how they propose to plead
A committal hearing is held in the Magistrates Court prior to a criminal case going to trial to County or Supreme Court
If a magistrates decides that there is insufficient evidence and no Prima facie case exists, then the accused is allowed to go free. However if new evidence is found in the future, the accused can once again be brought before the court.
What is deterrence, rehabilitation, and denunciation
Deterrence
This sanction aims to discourage offenders from either committing or recommitting crimes. This can be general deterrence (to the whole community) or specific deterrence (to the offender)
Rehabilitation
This sanction aims to assist offenders to change their attitudes and be ready to take their place in society. This is usually achieved via programs in prison and via other community based orders or specific orders
Denunciation
This sanction aims to show disapproval by the court and therefore society for the unlawful act that occurred. A particular punishment of sanction may be given to show disapproval or a harsher sentence to show disapproval of particularly violent crimes.
Explain punishment and protection and the sanctions act 1991
Punishment
The offender should be punished to an extent and in such a manner that is just in all the circumstances, so society can feel there has been retribution
Hence, this sanction through courts avoids the need for the victim of a crime to take the matter into their own hands and seek revenge
Protection
In some instances it is necessary to protect the community from the offender. In such cases the offender needs to be removed from society and put into prison to physically prevent them from reoffending.
The sentencing act 1991 provides sanctions and its aim is to defer offenders and facilitate the rehabilitation of offenders.
The purpose of which the sanction is imposed is called the principle of parsimony.
Explain imprisonment
Imprisonment refers to when people who have been convicted of a crime are sentenced to be detained in a jail for a period of time, which means loss of their freedom and liberty. It is a deprivation of freedom and liberty in a secure facility.
Imprisonment is viewed as a last resort
Prison terms are expressed in levels from 0-9, once being the most serious (life) and 9 being for 6 months
The maximum sentence magistrates can give for a single offence is up to 2 years and up to 5 years for two or more offences
To what extent does imprisonment achieve DRDPP
Deterrence
Imprisonment is likely to act as a general deterrence in that most people would be discouraged from committing a crime by the possibility of going to prison. It may also act as a specific deterrence in that the offender will not want to go to prison again however at times it may not be that effective as they mix with serious criminals whilst in prison
Rehabilitation
Whilst there are various programs implemented within prisons to ensure prison members are useful members of society upon release, there is still question over the effectiveness of these programs, as they don’t truly focus on changing prisoners values and attitudes. They are shown to be largely ineffective due to the high recidivism rates and further, prisoners consort with other serious criminals whilst in jail
Denunciation
Courts can impose long sentences on offenders by way of showing disapproval of the acts they have committed
Punishment
The loss of basic freedom and liberty acts as a punishment for the offender
Protection
By physically removing the offender from society and holding them in a secure facility, the community is protected from any further crime and harm
Explain fines and the extent to which they achieve DRDPP
A fine is a monetary penalty paid by the offender to the court
Under the sentencing act 1991, fines are usually expressed in levels 1-12, as penalty units. One penalty unit is $147.61 in the 2014-2015 financial year
Deterrence
The threat of losing money may discourage the offender from recommitting a crime, specific,as well as discouraging the community, general
Rehabilitation
A fine is very unlikely to rehabilitate an offender as it does nothing to alter an offenders behaviour and attitudes
Denunciation
A court could give an extremely high fine as a way of denouncing the particular crime, thus showing disapproval by the court and therefore society
Punishment
The offender is punished through financial loss
Protection
Fines do very little to protect the community as it does not take the offender away from society
What is a Drug Treatment Order (DTO)
A DTO can be ordered by the Drug Court in the Magistrates court if a person pleads guilty and the drug court is satisfied the offender is dependant on drugs or alcohol and that his dependency contributed to the commission of an offence
This sanction is not available when the offence involves the infliction of actual bodily harm, or for sexual offences. This sanction is only available to the drug court
The purpose of DTO is to help rehabilitate the offender by providing a judicially supervised drug or alcohol treatment program
The aim is to reduce the level of criminal activity associated with drug and alcohol dependency and reduce the offenders health risks
A DTO can only be ordered if the court considers the sentence imposed cannot be achieved through an intensive correction disorder
A DTP consists of two parts, a treatment part is used to treat the underlying problems where the offender is subject to a drug and or alcohol treatment program, the custodial part is a backup for if the offender breaches their DTO or reoffends they go straight to prison (acts as deterrence from crime).
How does a DTO achieve DRDPP
Deterrence
Offenders are likely to be deterred from reoffending, as it would lead to certain imprisonment, or through breaching the DTO leading to certain imprisonment. This is because the DTO is accompanied by a Custodial order
Rehabilitation
Through a supervised rehabilitation program, the DTO focuses on changing the attitudes of the offender as well as treating the underlying drug problem. Thus leading to rehabilitation in a successful manner. These programs are shown to be effective through lower recidivism takes when compared to imprisonment.
Denunciation
A court has demonstrated disapproval of drug related offences as the DTO is accompanied by a custodial order which has been suspended
Punishment
Some offenders report that DTO’s have been more difficult to cope with than a prison sentence due to withdrawal issues as a result of their reliance on the substance
Protection
The community is protected by reducing the likelihood of the offender re-engaging in criminal activity
Fair and unbiased hearing
Features of the criminal that allow for a fair and unbiased hearing are:
Bail
Bail upholds the presumption of innocence, as an accused person is generally release from custody until their hearing or trial. Being released on bail also gives the accused and their legal representation the best chance to prepare their case, thereby having some opportunity to do so as the prosecution.
Committal hearings
This process enables the accused to learn from the prosecutions case against them, thereby helping them to prepare their defence, and putting them on equal footing with the prosecution
Problems relating to the entitlement to a fair and unbiased hearing
Bail
An accused person may be granted bail and instead be places on remand, which is being imprisoned, even though they have not been found guilty of a crime. Because of the possibility of keeping an innocent prison in prison, bail justices, magistrates and police are very reluctant to refuse bail. However if bail is given too freely, it could lead to an accused person absconding and causing extra work for the police and potential danger to the community
Committal hearings
Prosecution evidence for a case is gathered by the police, who are experts in this area, with time and resources devoted to this purpose. An accused person will probably have far less resources and expertise in gathering their own evidence for their defence, thereby putting the parties on unequal footing especially during committal hearings. However it is the prosecution who has the burden of proving the case.
Recent changes/ recommendations for change
Changes to evidence laws: The evidence Act 2008 (vic) makes various amendments to rules of evidence and their admissibility. The act made significant changes to hearsay evidence, in an attempt to allow more relevant evidence to be heard in a court
Access to the legal system
Features of the legal system that allows for effective access to the legal system to be achieved:
Courts are available to be used in criminal matters including committal hearing in both metropolitan and regional areas
Legal aid:
