SAC 1

Question 1

Social cohesion

Answer 1

the ability of a community to live together with peace, order and harmony by recognising that all people have rights and responsibilities.

Question 2

Sources of law-

Answer 2

 Parliament: creates statute law. In Australia there are 9 parliaments (1 commonwealth; 6 state and 2 territory). These pass written laws in the form of Acts, legislation or statutes. Each parliament has their own constitution which gives them parliamentary sovereignty (ultimate law-making authority). They can make, change, or repel previous legislation as well as override decisions made by courts. They have the ability to delegate their law making power to government departments, statutory authorities and local councils (delegated legislation)
 Courts and Judges: creates common law. New law can be formed from judges in order to resolve a particular dispute. This is created through the operation of the doctrine of precedent.

Question 3

Types of law-

Answer 3

 Criminal law: law dealing with behaviour considered harmful to society as a whole, in order to protect society. This can be enforced by police, courts and government departments.
 Civil law: laws regulating the behaviour of private individuals. The purpose of civil law is to enforce rights when they have been infringed.

Question 4

• FAIRNESS:

Answer 4

relates to the processes, procedures and principle that ensure all are treated impartially and without fear or favour, such as:
 Impartial and objective judge/jury
 Parties have a thorough understanding of court processes
 Parties have the opportunity to prepare their defence and rebut the prosecution’s case.
 Applying the rules of evidence and procedure in the court room
 Legal rights and protection of the plaintiff/ accused and victim

Question 5

• EQUALITY

Answer 5

relates to the processes, procedures and principles that ensure all are treated with the same status or rights, such as:
 Natural justice and equal opportunity
 Plea negotiations and sentence indications
 Key personnel in a criminal and civil trial
 Criminal and civil processes and procedures

Question 6

• ACCESS

Answer 6

relates to the establishment of a range of methods and institutions used to ensure all have the means or opportunities to utilise the legal system in an effective manner, such as:
 Ensuring that individuals with special needs have access to appropriate courts, government and community services
 Assessing the impact of costs, time, accessibility and cultural differences on the criminal and civil justice system

Question 7

two main Acts that cover criminal law

Answer 7

 The Victorian Crimes Act 1958

 The Victorian Summary Offences Act 1966

Question 8

• SUMMARY OFFENCES:

Answer 8

These are less serious / minor criminal offences that are heard before a Magistrate in the Magistrates Court. The final hearing at which both parties will put their case before a Magistrate is known as a hearing.

Question 9

• INDICTABLE OFFENCES:

Answer 9

These are serious criminal offences that are heard by a judge (and jury if the accused pleads not guilty) in the County or Supreme Court. Final hearings are known as trials.
E.g. murder, manslaughter, robbery, theft

Question 10

• INDICTABLE OFFENCES HEARD SUMMARILY

Answer 10

This is when an indictable offence is heard in the Magistrate’s court as it is believed that it is appropriate to be dealt with by a Magistrate. In order, for this to occur both parties must agree to have the matter heard in the Magistrate’s court.

Question 11

BURDEN OF PROOF

Answer 11

This refers to the responsibility of a party to prove the facts of the case. In criminal matters, this is the prosecution (i.e. the prosecution has to prove that the accused is guilty)

Question 12

STANDARD OF PROOF

Answer 12

This refers to the level of strength of evidence needed to prove a case. In criminal matters, the prosecution must prove the case beyond a reasonable doubt. This doesn’t mean that no doubt exists at all as to the accused’s guilt, rather, no reasonable doubt is possible from the evidence presented.

Question 13

PRESUMPTION OF INNOCENCE

Answer 13

Every person accused of a crime is presumed innocent until they have gone before a court and have been found guilty. This is outlined in both common law and international law:
The treaty on International Covenant on Civil and Political Rights 1966
The Charter of Rights and Responsibilities Act 2006 (Vic) Section 21 (5)

Question 14

• Human rights:

Answer 14

the basic rights and freedoms that each person should be entitled to, simply for being human. They are the basic standards in which a person should be treated.

Question 15

TWO MAIN DOCUMENTS OUTLINING RIGHTS OF THE ACCUSED

Answer 15

1. International Covenant on Civil and Political Rights 1966 (ICCPR):
2. Charter of Human Rights and Responsibilities Act 2006 (Vic):

Question 16

Rights of the accused

Answer 16

The right to be tried without unreasonable delay (Sections 21 and 25 of the Human Rights Charter.)
The right to a fair hearing (Section 24 of the Human Rights Charter)
The right to trial by jury (Section 80 of the Australian Constitution and the Victorian statute law)

Question 17

The Victims’ Charter Act 2006

Answer 17

objective:

• Recognise the impacts of the crime on victims
• Recognise that victims should be offered certain information during the investigation and prosecution process
• Help reduce the likelihood of the victimisation that may be experienced by the victim as a result of the interaction with the criminal justice system.

defined victims as:

• A person who has suffered an injury as a direct result from criminal offence
• A family member of someone who has died as a direct result from criminal offence
• A family member if a person under 18 years or who is in capable of managing there on affairs due to mental impairment, and that person has suffered injury
• A child under 16 years who has been groomed for sexual conduct and there family

Question 18

Victims possess 3 rights:

Answer 18

1) The right to give evidence as a vulnerable witness
2) The right to be informed about the proceedings
3) The right to be informed about the likely release date of the accused

Question 19

VICTORIA LEGAL AID

Answer 19

A government agency that provides free legal advice to the community as well as low or no cost legal representation for those who do not have the means to do so themselves.

Question 20

objective of VLA

Answer 20

• provide legal aid in the most effective, economic and efficient manner
• improve access to justice for the community
• make recommendations for law reform
• implement educational programs to promote understanding by the public of their rights, powers, privileges and duties under laws
• research legal aid issues

Question 21

VLA can assist with:

Answer 21

• Duty lawyers in the Magistrates and children’s court (provided they meet income test)
• Free legal information
• Free legal advice
• Grants for legal assistance; to those who can’t afford a lawyer (means test to determine eligibility- applicant’s income, assets and expenses assessed)

Question 22

COMMUNITY LEGAL CENTRES

Answer 22

They are independent organisations who work alongside VLA to provide services such as free advice and information / representation. There are two types of CLC’S:

• Generalist CLCs- provide broad legal services to people in a particular geographical area
• Specialist CLCs- focus on a particular group of people or area of law

Question 23

CLCs can provide people with:

Answer 23

• Information, legal advice and minor assistance
• Duty lawyer assistance
• Legal casework services including representation and assistance

Question 24

The Purposes of Committal Proceedings:

Answer 24

• Determining if a prima facie case exists: refers to whether at first glance the case has sufficient evidence strength and substance to proceed further to trail (also gives the accused a chance to learn the strength of the case against them, prepare a plea or enter a defence)
• Determining how the accused will plead: accused is given the chance to enter a plea after knowing the prosecution’s case
• Ensuring a fair trial: the accused has the opportunity to prepare a defence; enter a plea; cross examine witnesses; prepare their case; contest or define any complex legal issues before trial so that delays are minimised
• Determining the direction of the case: can the case be heard summarily or in the County or Supreme Court. Helps to save time, minimising delays and court resources.

Question 25

Plea negotiations:

Answer 25

These are discussions between the prosecutor and the accused about the charges against the accused. These can take place in either summary or indictable offences.

Question 26

outcomes of plea negotiations

Answer 26

• The accused pleads guilty to fewer charges with the remaining charges not proceeding
• The accused pleads guilty to a lesser charge

Question 27

purposes of plea negotiations

Answer 27

• To resolve a criminal case by ensuring a plea of guilty to a charge that adequately reflects the crime that was committed.
• To achieve a prompt resolution to a criminal case without a criminal trial (or hearing)

Question 28

appropriateness of plea negotiations

Answer 28

• Whether the accused is willing to cooperate in the investigations or prosecution of co-offenders, or offenders of other crims
• If the accused is ready and willing to plead guilty
• The strength of the prosecution’s case including evidence the prosecution has of a conviction
• If the witnesses are reluctant or unable to give evidence, which would jeopardise the prosecutions ability to achieve a guilty verdict
• The time and expense of trial
• The possible adverse effects of a full trial (stress and inconvenience on victims and witnesses)

Question 29

strengths of plea negotiations

Answer 29

Saving the cost of a full trial or hearing
Saved trauma, distress and inconvenience of victims, witnesses and their families
Accused may receive a reduced sentence because of guilty plea before trial
Prompt determination of criminal cases

Question 30

weaknesses of plea negotiations

Answer 30

Some may feel accused has been ‘let off easy’
Don’t need to be disclosed – lack of transparency
Self-represented people may feel pressured into accepting a deal even if evidence isn’t strong

Question 31

Sentence Indication:

Answer 31

A sentence indication is a verbal statement given by a court to the accused to let the accused know what sanction is likely to be imposed on them. This can be given for either summary of indictable offences. Sentence indications are allowed under the Criminal Procedure Act.

Question 32

sentence indications for indictable offences

Answer 32

A sentence indication can only be given if the accused applies for one and the prosecution agrees. It can only be given once during the proceeding (unless the prosecution consents otherwise). The court can refuse to give a sentence indication + a sentence indication cannot be held against the accused as evidence of guilt.

Question 33

sentence indications for summary offences

Answer 33

can be given anytime in the Magistrates court, if a sentence indication is given, and the accused pleads guilty to the charge of the offence at the first opportunity, the courts must not impose a more sever type of sentence then that indicated.

Question 34

purpose of sentence indications

Answer 34

• To provide the accused with some clarity about the likely sentence that will be imposed – make an early decision to plead guilty
• Save costs, time, resources, stress and inconvenience of contested trial (or hearing)
• Help bring earlier closure for victims and their families
• Signify accused’s willingness to accept responsibility

Question 35

appropriateness of sentence indications

Answer 35

• Whether the accused has applied for sentence indication
• The type of offence and court hearing charges
• If sufficient information for judge/ magistrate to make indication
• Whether indicatable charge, and the prosecution consents to indication
• Strength of evidence against the accuse, if accused has raised legitimate defence

Question 36

strengths of sentence indications

Answer 36

Can result in early determination of case
Save money and resources of trial/hearing
Accused is not bound to accept indication and plead guilty – procedural fairness

Question 37

weaknesses of sentence indications

Answer 37

Judge not obliged to grant request for sentence indication – be seen as unfair
Prosecution must consent in higher courts- limited availability
Court can close proceeding to public when indication is given – lack of transparency

Question 38

Reasons for a court hierarchy:

Answer 38

1. COURT SPECIALISATION- the expertise the courts have over a particular area which has been developed after hearing these matters regularly.
2. APPEALS: the ability to seek a second opinion from a more superior / senior court by parties if they believe an error has been made at trial
   - Appealing on question of law
   - Appealing a conviction
   - Appealing severity of leniency of a sanction imposed

Question 39

key personnel in criminal trials

Answer 39

Judge
jury
parties
legal practitioners

Question 40

judge

Answer 40

Must act impartially, independently, not favour any side and must have no connection with the prosecution or accused.
responsibilities:
-manage the trial (equal opportunity; how evidence is given; uphold rules and procedures)
-decide on admissibility of evidence (Evidence Act 2008)
-Attend to jury matters ( clarify and explain; excuse members; summarise case to jury)
-Handing down a sentence
-Order VLA to provide legal representation

Question 41

jury

Answer 41

Random cross-section of society; Composed of 12 members; act as independent decider of facts, make decision (hand down verdict)
responsibilities:
-be objective ( unbiased + open-mind; no connection)
-listen and consider evidence
-deliver verdict

Question 42

parties

Answer 42

Prosecution: bringing case to court
Accused: charged with criminal offence
Party control- has control over way the case will run
responsibilities:
Pros: give opening address; assist in empanelling jury; present their case including all credible evidence; make submissions to judge; meet burden and standard of proof
Acc: assist in jury empanelment; present evidence relevant to case; can remain silent; address jury.

Question 43

legal practitioners

Answer 43

Prepare and conduct the case.
Barristers- legally trained; present the case in court
Solicitors- legally trained; draft documents; communicate with other party; prepare case
responsibilities:
-preparing case
-comply with their duty to the court (act ethically, be courteous and cooperate with each other
-present their case

Question 44

Purposes of Sanctions:

Answer 44

1. Rehabilitation: to treat and address underlying reasons for their crime
2. Punishment (retribution): get some revenge against the offender
3. Protection: safeguard the community
4. Deterrence: discourage the offender from further offences (specific deterrence) and discourage society (general deterrence)
5. Denouncement: demonstrate the community’s disapproval of the offenders actions

Question 45

fines

Answer 45

A monetary penalty ordered to be paid by the offender to the state of Victoria or Australia, depending on infringement. Amounts are calculated in penalty units (1 unit = $165.22). When imposing a fine, courts take into account the financial circumstances of the offender, as well as burden the fine will impose on the accused

Question 46

CCOs

Answer 46

A supervised sentence served in the community that includes basic and specific conditions tailored to the offender. Give the offender chance to stop their criminal behaviour and undergo treatment while still in the community.
Conditions may Inc.: must not commit an offence; report to and receive visits from CC officer; unpaid community work; residence restriction

Question 47

imprisonment

Answer 47

A custodial sanction that involves the removal of the offender from the community for a stated period of time placing them in prison. Prison terms can be given concurrently (served at same time) or cumulatively (one after the other)
Parole= the conditional release of a prisoner after the minimum period has been served.

Question 48

factors considered when sentencing

Answer 48

1. AGGRAVATING FACTORS
2. MITIGATING FACTORS
3. GUILTY PLEAS
4. VICTIM IMPACT STATEMENTS

Question 49

AGGRAVATING FACTORS

Answer 49

circumstances of the offender or offender or offence that can increase the seriousness of the offence, or the offender’s culpability. If present a higher sentence should be imposed. Examples include:

• Use of violence, weapons or explosives when committing offence
• Nature and gravity of offence
• Vulnerabilities of victim
• Previous criminal history

Question 50

MITIGATING FACTORS

Answer 50

circumstances that a court should consider when determining the appropriate sentence. They can be relevant to the offender, the victim or crim itself. Generally reduce the seriousness of the offence or the offender’s culpability. Examples include:

• offender was provoked by victim
• offender showed remorse
• early guilty plea

Question 51

GUILTY PLEAS

Answer 51

whether the offender entered a guilty plea, and how far into the case. An early guilty plea results in a less server sentence. (Can avoid going to trial – save costs, resources, time, trauma etc.)

Question 52

VICTIM IMPACT STATEMENTS

Answer 52

statements made by the victim in court to share the impact that the crim has had on them and their families. Can contain particular injuries suffered/ loss or damage suffered/ trauma experienced.

Question 53

Factors that affect the ability of the legal system to achieve the principles of justice:

Answer 53

1) COST FACTORS
2) TIME FACTORS
3) CULTURAL FACTORS

Question 54

COST FACTORS:

Answer 54

• Cost of legal representation: cost of engaging a lawyer to seek legal advice and representation + further cost increase with lengthy trials and complex legal arguments
• Availability of Legal Aid: assistance from VLA not automatic –people o unrepresented or can’t pursue matter equitably.

Question 55

TIME FACTORS

Answer 55

• Delays in case preparation and pre-trial procedures: gathering evidence, interviewing witnesses etc. ; committal proceedings
• Court delays: wait for hearing date in court; under resourced system = increased delays

Question 56

CULTURAL FACTORS:

Answer 56

• Immigrants + new Australians: language barriers, perception of police and lack of trust in legal system = challenging to proceed; complex procedures and processes may not fully understand what’s occurring
• Indigenous Australians: many live in remote communities – limited access to legal workers; negative perception of police

Question 57

Recent reforms in the criminal justice system:

Answer 57

• The opening of the new Shepparton law courts in 2018 (to address cost + delays): provided further facilities including extra courtrooms with jurisdictions to hear matters of the county and supreme court as well as VLA for people in region – therefore those in Hume/ Goulburn region have extra resources in the form of free legal representation and advice
• Amendment of Juries Act 2000 so that mandatory 6hr time frame required to deliberate before a majority verdict is removed in 2017 (to address delays): jury verdicts can be accepted earlier therefore reducing delays and deliver shorter trials
• 2019 the Koori Court, as part of the Magistrates’ court division opened in Dandenong (to address cultural factors): this increased availability of the Koori Court to assist Indigenous offenders with the legal system.

Question 58

Recommended reforms to the criminal justice system:

Answer 58

• Further funding to VLA and CLCs (to address cost): suggested that further funding be provided from both State and Federal budgets to strengthen the resources of these institutions so that more people who would not normally be able to afford legal assistance/ representation can be supported
• Abolishment of committal hearings (to address time/ delays): as it is rare for cases to be dismissed at the committal stage, which makes their purpose of determining if a prima case exits irrelevant therefore it just adds delay so should be abolished.
• Koori Court system should be expanded (to address culture): its existence from 2008 has shown effectiveness therefore should be expanded to allow more Indigenous Australians have the opportunity to utilise the courts without e hindered by physical location or the courts availability.