Rights and Justice Flashcards
Rights of an Accused
and Sources
- Right to be tried without unreasonable delay (VCHRR s.25)
- Right to a fair hearing (VCHRR s.24)
- Right to a trial by jury (s.80 of Australian Constitution)
Rights of a Victim
- Right to give evidence as a vulnerable witness (Criminal Procedures Act)
- Right to be informed about proceedings (Victims’ Charter Act s. 7, 8 and 9)
- Right to be informed about the likely release date of the accused (Victims’ Charter Act s.17 (2)
What defines a vulnerable witness, and what are they?
- Evidence Act 1929 s.13A
- Under 18 years-old
- Cognitively impaired
- Alleged victim of a serious offence against the person
- Witness who has been subjected to or has reasonable grounds to fear violence or retribution in connection with the proceedings
Possible concessions to a vulnerable witness
- Having a support person whilst giving evidence, provided they are not a witness
- Having the court closed to the public whilst giving evidence
- Having a screen between the witness and the accused
- Giving evidence through a closed circuit television
Four Purposes of Committal Proceedings and Source
Criminal Procedure Act 2009 s.97
1. To determine if a prima facie case exists (there’s enough evidence to proceed to trial)
2. To determine how the accused will plead
3. To determine the future direction of the case
4. To ensure a fair trial (allowing accused to see evidence)
Committal Proceedings Strengths and Weaknesses
Strengths
- Save time and resources
- Allows the accused to be informed of the prosecution’s case against them
- Allows accused to test the strength of the prosecution’s case - examine witnesses
Weaknesses
- Complicated and can delay getting the case to trial, reducing access and increasing the risk of an unfair trial
- Can contribute to the secondary trauma of the victim and their family
- As the costs of legal representation are expensive, it can add to the cost for the accused, and to the state of prosecuting a case
Plea Negotiations Strengths and Weaknesses
Strengths
- Saves time and money by avoiding a full trial
- Help make a prompt decision and increase public confidence in the legal system
- Save victim and their family the trauma, inconvenience and distress of a trial
- Accused can receive a reduced sentence due to early guilty plea
Weaknesses
- Community and victims can feel like accused is being ‘let off’
- Self-represented accused can feel pressured to accept a deal even if there is not enough evidence to convict them
Purposes of Plea Negotiations
- To resolve a criminal case by ensuring a plea of guilt
- To achieve a prompt resolution to a criminal case without the cost of resources
Purpose of Sentence Indications
- To provide the accused with some clarity about their likely sentence, as to make an early decision to plead guilty
- Also can alleviate the fear of custodial sentencing
Sentence Indications Strengths and Weaknesses
Strengths
- Can result in the early determination of a case (prompt justice) (benefits everyone)
- Can save resources
- Conducted in open court (transparency)
- Accused is not bound to accept the indication and plead guilty - provides procedural fairness
Weaknesses
- Judge is not obliged to grant an indication, can be considered unfair
- Legislation allows for a court to close a proceeding to the public when a sentence indication is being given, may be a lack of transparency
- For an indictable offence, the court only has to tell the accused if there would be an immediate term of imprisonment, provides accused with less certainty about their sentence
VLA purposes
- Free legal advice to the community
- free to low-costing legal representation to people who cannot afford a lawyer
Fairness
Each person should have their case heard in an impartial and objective manner, and without fear or favour. Each person has a fair chance to present their case and rebut the prosecution’s case, and to have a fair hearing.
Access
Each person should have access to the law, that they should be able to understand their rights and pursue their case. Each person should be able to approach and access bodies and institutions that provide legal advice, information and assistance.
Equality
Each person should be treated equally before the law, with equal opportunity to present their case without advantage or disadvantage, regardless of individual characteristics.
