Rights Flashcards
Double jeopardy
The Criminal Procedure Amendment (Double Jeopardy and Other Matters) Act 2011 (Vic.) changed the common law rule against double jeopardy. It allows, in limited circumstances, for a person to face a retrial for the same offence despite a previous acquittal. Police must seek the approval of superiors and the Director of Public Prosecutions (DPP) before launching a formal reinvestigation. The DPP then has 28 days (from the day the person is charged) to apply to the Court of Appeal to set aside the previous acquittal. The DPP is limited to one application per acquittal. The Court of Appeal may authorise a new trial if it is in the interest of justice for the order to be made and it will result in a fair retrial. Retrials can only be authorised in specific circumstances.
3 circumstances when there can be a retrial
Fresh and compelling evidence
A tainted acquittal – The accused or another person has been convicted of an administration of justice offence such as bribery, perjury or perverting the course of justice and this behaviour resulted in the acquittal.
There is fresh evidence to suggest the accused committed an administration of justice offence which resulted in the acquittal.
Appeals, appellant, respondent
If the accused or the prosecution is not happy with the decision made by the court, grounds for appeal may exist. The accused or the prosecutor may appeal on a point of law (the interpretation of the law) or on a point of fact (the facts of the case). The person making the appeal is known as the appellant. The other party is called the respondent.
4 court appeals can be made to
• Appeals from the Magistrates’ Court can be made to the County Court on a point of fact (the
conviction or the severity of sentence), or to the Supreme Court on a point of law.
• Appeals from the County Court can be made to the Court of Appeal (three judges) on a point of
law or a point of fact.
• Appeals from the Supreme Court (single judge) can be made to the Court of Appeal.
• Appeals from the Court of Appeal can be made to the High Court if leave is granted by the High
Court. The High Court will generally only hear appeals if the matter is in the interests of natural justice or of public interest.
Memorise at least 5 of 12 human rights listed in the Victorian charter of human rights
🏈 Go Saints!
Equality before the law
Equality before the law
Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right
to equal and effective protection against discrimination.
Right to liberty and security of person
Right to liberty and security of person
Everyone is entitled to liberty and security and must not be subject to arbitrary arrest or detention.
A person must not be deprived of his or her liberty except on grounds – and in accordance with procedures – established by law.
A person who is detained must be promptly informed of the reason for the detention and must be brought before a court promptly.
Protection from torture and cruel, inhuman or degrading torture
A person must not be subjected to torture
or treated or punished in a cruel, inhuman
or degrading way or subjected to medical or scientific experimentation without full and free consent.
Humane treatment when deprived of Liberty
All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
An accused person who is detained or
a person detained without charge must
be segregated from persons who have
been convicted of offences, except where reasonably necessary.
An accused person who is detained or a person detained without charge must be treated in a way that is appropriate for a person who has not been convicted.
Children in the criminal process
An accused child who is detained or a child detained without charge must be segregated from all detained adults.
An accused child must be brought to trial as quickly as possible.
A child who has been convicted of an offence must be treated in a way that is appropriate for his or her age.
A fair hearing
A person charged with a criminal offence or a party to a civil proceeding has the right to have the proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
In some circumstances a court or tribunal may exclude members of media organisations or other persons or the general public if permitted to do so by law.
All judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless required otherwise in the best interests of a child, or permitted by a law other than this Charter.
Rights in criminal procedures
A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.
A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees:
• to be informed promptly and in detail
of the nature and reason for the charge in a language or, if necessary, a type of communication that he or she speaks or understands
• to have adequate time and facilities
to prepare his or her defence and to communicate with a lawyer or advisor chosen by him or her
• to be tried without unreasonable delay
• to be tried in person, and to defend himself
or herself personally or through legal assistance chosen by him or her or, if eligible, through legal aid provided by Victoria Legal Aid under the Legal Aid Act 1978
• to be told, if he or she does not have legal assistance, about the right, if eligible, to legal aid under the Legal Aid Act
Right not to be punished more than once
A person must not be tried or punished more than once for an offence in respect of which
he or she has already been finally convicted or acquitted in accordance with law, although a retrial can be ordered in limited circumstances.
Retrospective criminal laws
A person must not be found guilty of a criminal offence because of conduct that was not a criminal offence when it was engaged in.
A penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed.
If a penalty for an offence is reduced after
a person committed the offence but before the person is sentenced for that offence, that person is eligible for the reduced penalty. Nothing in this section affects the trial or punishment of any person for any act or omission which was a criminal offence under international law at the time it was done or omitted to be done.
Statement of compatibility
A minister who introduces a Bill to parliament must prepare a statement of compatibility with the Charter of Human Rights and Responsibilities, which is discussed in parliament.
