SAC 1 Rights and justice

Question 1

Fairness

Answer 1

ensuring impartiality within the processes of the legal system so that parties are not favoured or treated with discrimination

Question 2

Equality

Answer 2

means that everyone should be given the same rights and opportunities regardless of their individual characteristics or disadvantages.

Question 3

Access

Answer 3

Access refers to the ability for individuals to utilise the legal system to resolve disputes in a just manner.

Question 4

Summary offences

Answer 4

Summary offences are less serious/minor criminal offences that are heard before a Magistrate.

The final hearing at which both parties will put their case before a magistrate is known as a hearing (as opposed to a trial in County and Supreme Court).
eg. Driving offences – speeding, driving under the influence of alcohol

The Victorian Summary Offences Act 1966 – covers most summary offences

Question 5

Indictable offences

Answer 5

Indictable offences are serious criminal offences that are heard by a judge (and jury if the accused pleads not guilty
In the County or Supreme Court and involves pre-trial procedures such as committal proceedings.
. E.g. theft, assault, drug trafficking
The Victorian Crimes Act 1958 – covers most indictable offences

Question 6

Burden of proof

Answer 6

The burden of proof refers to the responsibility of a party to prove the facts of the case. The burden of proof lies with the party who is bringing the case. In criminal matters, this is the prosecution (i.e. the prosecution has to prove that the accused is guilty.)

Question 7

The standard of proof

Answer 7

The standard of proof refers to the level or extent in which the prosecution must prove their case.
To meet the standard of proof in criminal cases, the prosecution must prove their case beyond a reasonable doubt. It is the highest standard in our judicial system and it means convincing the court and jury, that based on the evidence presented, there is no other reasonable explanation other than the accused is guilty.

Question 8

The presumption of innocence:

Answer 8

A legal principle whereby every person accused of a crime is presumed to be innocent, until they have gone before a court and have been found guilty.
The ways in which the presumption is maintained throughout the criminal justice system can be seen through:
Imposing the burden of proof on the prosecution
Having a high standard of proof
The system of bail

Question 9

Rights of the accused

Answer 9

The right to be tried without unreasonable delay
The right to a fair hearing
The right to trial by jury

The sources of these rights are contained within international treaties (agreements) and domestic legislation.

Question 10

The right to be tried without unreasonable delay

Answer 10

A person who is charged with a criminal offence is entitled without discrimination, to a guarantee that he or she will be tried without unreasonable delay.

The Charter of Rights and Responsibilities 2006 (Vic)

Charter of Rights and Responsibility S21(5)

The term ‘unreasonable delay’ is not defined – the right recognises that there may be delays in the process but the delay must not be unreasonable.

The Criminal Procedure Act 2009 (Vic) sets time limits for the start of trials. If an accused is charged with a sexual offence, the trial must start within 3 months from the day the accused is committed for trial. If the accused is charged with an offence other than a sexual offence, the trial must start within 12 months on the day the accused is committed for trial.

Question 11

The right to a fair hearing:

Answer 11

The right to a fair hearing entitles a person who is charged with a criminal offence the right to have the matter decided by a competent, independent and impartial court after a fair and public hearing.
There are two parts to this right:

S24 (1) of Charter of Rights and Responsibilities

Question 12

Bail hearing – Right to a fair hearing

Answer 12

A bail hearing = a criminal pre-trial procedure.

When charged with an indictable offence, an accused is able to make a bail application to determine whether he or she is able to be released back into the community while awaiting trial or the next hearing. If bail is granted, there are usually conditions attached:

Not contacting the victim or other witnesses
Attending counselling
Abiding by a curfew
Surrendering passport

A bail hearing protects the right of an accused to be treated fairly and without bias. A system of bail recognises that all people are considered innocent until proven guilty. If the accused needs to make a bail application at court, the magistrate must make a decision that is fair and unbiased, and in accordance with the legislative requirements of the Bail Act 1977 (Vic)

Question 13

The right to trial by jury

Answer 13

When an accused pleads ‘not guilty’ to a criminal charge, they are entitled to have a jury determine their guilt in court.

What does this involve?

The right to trial by jury is protected within the Australian Constitution and in part, by statute law.

S80 of the Constitution: any person who is charged with an indictable Commonwealth offence is entitled to trial by jury. This only applies to Cth offences.
The Criminal Procedure Act requires a jury to be empaneled where the accused has pleaded not guilty to an indictable offence. There is no right to a jury for summary offences. If a jury trial is required, then the Juries Act 2000 (Vic) will govern the composition and responsibilities of the jury.

Question 14

Why are juries important in the criminal justice system?

Answer 14

Jury members are from the community and therefore embed into their decisions views and values from the community
Juries allow for the community to participate in the legal system
Having a jury spreads the decision making process to avoid the possibility of bias or discrimination
Having a jury ensures that the judge is not the only person making a decision on the guilt of the accused

Question 15

Composition of a jury

Answer 15

A criminal jury is made up of 12 jurors. They are randomly selected from the community and will hear case against the accused during trial. Members of the juries will then need to reach a verdict on whether the accused is guilty or not and base their decision beyond a reasonable doubt.

Question 16

Who is a victim?

Answer 16

A victim is a person who has either directly or indirectly been impacted by a crime.

Victims of crime can experience many different physical, emotional and financial effects

Question 17

Rights of victim

Answer 17

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

Question 18

The right to give evidence as a vulnerable witness

Answer 18

Who is a vulnerable witness?

A vulnerable witness: children, people with cognitive impairment, victims of sexual assault and victims of family violence

The Criminal Procedure Act 2009 provides legislative support for vulnerable witnesses to give evidence

Definition:

The right to give evidence as a vulnerable witness refers to the adjustments that courts can make to ensure that individuals who are considered vulnerable witnesses, are able to give evidence in an environment that is less intimidating to achieve a greater sense of fairness, equality and access.

Question 19

Alternative arrangements for giving evidence

Answer 19

The Criminal Procedure Act 2009 (Vic)
Victims can: give evidence in a location other than the courtroom via closed-circuit television (CCTV) or other similar communication facility
Use screens to remove the accused from their line of site
Give evidence-in-chief (the questioning of a lawyer’s own witness) by answering questions in the form of an audio or audio-visual recording
Give evidence in a special hearing (sexual offences when the complainant is below 18) where the evidence given is recorded, time limits are put in place, not take place in the same room as the accused and cannot be cross-examined without leave

Question 20

The right to be informed about proceedings

Answer 20

Victims Charter Act 2006, a victim has the right to be informed at reasonable intervals about the progress and investigation into a criminal offence unless the victim requests to not be given the information or if the disclosure may harm the investigation.
The victims has the right to be informed about:
The charges against the person accused of the criminal offence
If there are no charges against the person, the reason for this
Any decisions to modify the charges, not proceed with some or all of the charges, or to accept a plea of guilty to a lesser charge
How to find out the date, time and place of the hearing or charges against the accused person
The outcome of the criminal proceedings against the accused including sentence imposed
Details of an appeal if one is initiated

Question 21

The right to be informed about the likely release of the accused

Answer 21

A person who is registered on the Victim’s Register may receive certain information about an offender who has been imprisoned, including their likely date of release, and (if applicable) their release on parole.

The information must be provided at least 14 days before the release of the prisoner.

What does this involve?

A Victim’s Register: A register (database) maintained by the state of Victoria to provide the victims of violent crimes with relevant information about adult prisoners while they are in prison (e.g. the earliest possible release date).

A person/s who has been a victim of: rape and other sexual offences, aggravated burglary, kidnapping, stalking, offences involving assault or injury punishable by imprisonment is likely to be included on the Victim’s Register.

Question 22

What information can victims on the Register gain?

Answer 22

A victim who is on the Victim’s Registry can apply to receive the following information about the offender:

The length of the offender’s sentence
The offender’s earliest possible release date
Any change to the length of the offender’s sentence
The offender’s parole status and conditions
The offender’s escape from prison

Question 23

Victorian Legal Aid:

Answer 23

Victorian Legal Aid is an independent, government-funded organization (Vic + Cth) that has been established to ensure that Victorians who cannot afford to pay for a private lawyer can receive assistance with their legal problems.

Question 24

Purpose (What is it there for?
of VLA

Answer 24

The purpose of VLA is to encourage a fair and accessible justice system.

Question 25

Who can VLA help?

Answer 25

VLA can assist children and young people, people experiencing mental illness or living with a disability, clients who experience violence, trauma and abuse and Aboriginal and Torres Strait Islander clients.

Question 26

Will everyone who applies receive assistance from VLA?

Answer 26

Anyone can apply for legal assistance by completing and submitting an application online. Eligibility is determined by a means test and merits test:

Means test: this is assessed based on the client’s income, existing assets and weekly living expenses

Merits test: what benefit will the grant have on the client, community or a particular section of the community, what detriment will a refusal of service have on the client, community or a particular section of the community.

Depending on the needs of the client, VLA can provide assistance from the lowest category of

Question 27

How can VLA assist?

Answer 27

Online information and printed information
VLA also publishes printed materials (pamphlets, fact sheets) that are available for people to retrieve at their offices or located in targeted community centres.
Help via phone/web-chat
Face to face information and referral
Duty lawyers for:
Magistrates’ court = for summary and indictable crime duty lawyers
Children’s Court and Magistrates’ court = for family violence and personal safety cases
VCAT = for human rights and residential tenancies

Grants of legal assistance

Question 28

Community Legal Centres:

Answer 28

Community legal centres (CLCs) are independent, non-profit, community-based that provide free and accessible legal aid related services.

Question 29

Funding: of clcs

Answer 29

CLCs are mainly funded by the Cth and Victorian state governments but are also funded by VLA, local councils, universities and other organisations.

Question 30

Purpose of clcs

Answer 30

The purpose of CLCs are to provide free and accessible legal and related services to the community and for those individuals who are experiencing discrimination and disadvantage.

One way to distinguish VLA and CLCs are that CLCs tend to be more targeted.

Question 31

Generalist CLCs

Answer 31

These provide broad legal services to people in a particular geographical area or LGA (local government area). These tend to target certain suburbs which has indicated a demand for particular services e.g. domestic violence, migrant communities, youth crime, drugs and substance abuses

Question 32

Specialist CLCs

Answer 32

These focus on a particular group of people or area of law (e.g. Youth Law provides services to people under 25 years, Refugee Legal, Women’s Legal Service

Question 33

Who can CLCs assist?

Answer 33

CLCs will generally provide assistance to individuals that falls within their ‘specialist’ CLC category and vulnerable clients.

Each CLC will have a different eligibility criteria e.g.

What type is legal advice is required?
Consider whether there are other services that exists to better assist their clients
Whether the person has a reasonable chance of being successful

The extent of services provided by CLCs will vary. Some CLCs will only offer advice, others can arrange legal representation, many offer assistance only to those who live in a particular geographical area while other may only deal with criminal matters but not indictable offences.

Question 34

How can CLCs assist?

Answer 34

Basic legal information:
Initial legal advice: CLCs offer a free legal advice service that allows people to visit the CLC without an appointment and get legal information and advice. Phone advice is also available.
Duty lawyer assistance:
Legal casework very rarely, a CLC will take on a criminal matter. This involves legal representation and assistance and will require ongoing legal services.

Question 35

Committal Proceedings:

Answer 35

The various steps the form a stage in criminal pre-trial procedures that is used to determine whether the prosecution has sufficient evidence to support a conviction in a higher court, before a jury is properly-instructed.
Relevant legislation:

Criminal Procedure Act 2009 (Vic) under Section 96. This states that a committal proceeding will be heard in the Magistrates court when:
A person has been charged with one or more indictable offences
The accused has pleaded ‘not guilty’

Question 36

Purposes of Committal Proceeding:

Answer 36

Determine whether the accused proposes to plead guilty/not guilty
Inform the accused of the case against them
Ensuring a fair trial
Determine whether the offence/s can be heard summarily before a Magistrate

Question 37

Hand up brief:

Answer 37

A hand-up-brief is a collection of all the prosecution’s evidence in documentary form (e.g. witness statements, photos, reports etc.) Forty-two (42 days) before the hearing, the accused should be presented with the hand-up-brief and a copy is also presented to the magistrate who will review the evidence, hear arguments on the day, and determine if the case will proceed to trial.

Question 38

Contested committal hearing:

Answer 38

This is held if the accused wishes to question witnesses in the hand-up brief – in other words, they wish to ‘contest’ the evidence in person, in oral form. They will notify the court at least five days prior to the hearing date and a kind of ‘mini-trial’ will occur with the magistrate deciding if the case will proceed.

Question 39

Strengths of committals

Answer 39

Committal proceedings uphold the accused’s right to be presumed innocent until proven guilty by forcing the prosecution to prove they have sufficient evidence to justify a trial

The hearing enables the accused to properly prepare for their trial by allowing them to see the evidence against them – this levels the playing field a little which is necessary as it is one individual against the state

The accused is informed of the case against them at an early stage which allows them to prepare a defence only in relation to issues in dispute – this allows the accused to allocate their resources more efficiently and only focus on matters that raise reasonable doubt.

Committals save time and resources of higher courts by filtering out weaker cases

The accused has the opportunity to test the strength of the prosecution’s case – which includes the opportunity to cross-examine witnesses which can inform their plea

The prosecution is given the opportunity to withdraw or combine some of their charges after the evidence has been considered – helps to achieve a fairer trial and saves time of higher courts

Question 40

Weaknesses of committals

Answer 40

Committals don’t promote a fair and equal hearing as the accused does not have to show any of their evidence and therefore receives an unfair advantage
Committals can be considered a waste of time since only 1.6% matters have been dismissed by the Magistrate since 2013 and, the DPP has the power to override the Magistrates’ findings and push the case to trial even if it is dismissed (direct indictment)
Committals are very complicated which can involve cross-examination of witnesses and making submissions to the court and without the experience and assistance of a legal representative, the accused can find the process difficult to understand and navigate
Costs for legal representation can be expensive – this adds further costs for the accused who may not be working as they’re held in remand
Committals also adds to delays of getting the case the trial and therefore reduce effective access to the legal system – the average time for committals is 8 months
Committal proceedings also contribute to the stress and trauma experienced by the accused, victims and family members
In 2018 – 2019, 74% of indictable charges were resolved by a guilty plea at the end of committals which suggests that are becoming redundant.

Question 41

Plea negotiations:

Answer 41

A plea negotiation is a private and informal negotiation between the accused and the prosecution that may take place at any time between the accused is charged and the verdict being handed down in their hearing or trial.

A plea negotiation may involve discussions about the appropriate charges, the reliability of any evidence in the case and the likely sentencing consequences if the accused pleads guilty.
The outcome of plea negotiations for the accused generally are:

The accused pleads guilty to fewer charge/s with the remaining charges not proceeding
The accused pleads guilty to lesser charge/s (a charge for an alternative offence with a lower maximum penalty)

When can plea negotiations occur?
Plea negotiations can occur for both summary and indictable offences

Question 42

Purposes of plea negotiations:

Answer 42

Promoting an early plea to save time, costs and stress:

Resolving a criminal case by ensuring a plea of guilty reflects the crime that was committed

Question 43

Plea negotiations are appropriate when:

Answer 43

When the accused is willing to participate in the negotiation and willing to plead guilty
The strength of the prosecution’s case may be weak and a conviction beyond a reasonable doubt may be unlikely
Witnesses may be reluctant to give evidence and therefore this may jeopardize or weaken the prosecution’s case
Proceeding with a full trial may cause further stress, trauma and inconvenience on the victims/families
The views of the victims have been taken into consideration and they are likely to ‘accept’ that a guilty plea will mean a less severe sanction
The likelihood of a long trial on the use of the court’s time and resources including costs associated

Question 44

Plea negotiations are not appropriate when

Answer 44

When accused is not willing to participate in the negotiation and not willing to plead guilty. Prosecution has strong case. Victims unlikely to accept less and fewer charges for accused. Strong case means it’ll end quickly therefore no wasting time costs and resources. Likely to be able to prove beyond reasonable doubt. Short trial. Unlikely to cause extra stress trauma and inconvenience.

Question 45

Strengths of plea negotiations:

Answer 45

The prosecution is able to get a conviction for the crime/s and the offender receives a sanction – prompt determination of a case
Negotiations saves costs of a full trial and also minimizes delays
Plea negotiations limits the backlogs that may occur in higher courts should all indictable offences proceed to trial
Victims/families are saved the trauma, inconvenience and distress of a trial process
There are advantages to the accused who may receive a reduced sentence due to an early plea
Negotiations ensure that there is certainty of outcomes for all parties involved. Going to trial/or hearing can risk that possibility that jury or magistrate will decide there is reasonable doubt and acquit the accused.

Question 46

Weaknesses of plea negotiations:

Answer 46

The process of plea negotiations lack transparency. As negotiations are informal and held in private, they are not subjected to review or appeal and not reported, no legislative guidelines
Self-represented individuals may feel pressured into accepting a deal even if the evidence is not strong
Controversy can arise when serious charges are downgraded. This can lead to the public losing faith in the legal system.
The victim does not receive the opportunity to testify against the accused so justice is not seen to be done.
Offenders who have committed serious crimes are back in the community earlier, having received a reduced sentence
An inexperienced defence lawyer may encourage the accused to plead guilty as party of a plea negotiation when, in fact, if the case were to proceed to trial the accused may have been acquitted
If negotiations did not succeed, then either party may be advantaged or disadvantaged if the matter proceeds to trial e.g. the prosecution may get an insight into the accused’s case

Question 47

Sentence indications:

Answer 47

Definition:
Sentence indications are another method to encourage the accused to plead guilty early. It is a request from the accused (via their legal representative) to the judge/magistrate as to whether the accused will receive a custodial sentence or a non-custodial sentence if they decide to plead guilty during that point in time.

Legislation:

Sentence indications have been available in Victoria since 2008 and the regime is currently contained within the Criminal Procedure Act 2009 (Vic)

Question 48

When can sentence indications be given:

Answer 48

Sentence indications can be given for both summary and indictable offences. It is given when the prosecution and the accused approves. This can occur at any time after the charges have been filed. However, for an indictable offence, only one sentence indication can be given unless the prosecution agrees to having a second indication.

Question 49

Purposes of sentence indications:

Answer 49

Provide the accused with clarity about the likely sentence that will be imposed eg non custodial

Saving time, cost, resources, stress and inconvenience

Question 50

Sentence indications in the County or Supreme Court (indictable offences

Answer 50

Indictable offences, accused applies for a sentence indication, prosecution consents to a sentence indication, if the court agrees, judge will indicate whether a sentence will be imposed. If the courts agree to a sentence indication, the judge is given a summary of the facts and any other relevant information. The judge is then able to indicate whether a custodial sentence is likely to be imposed if the accused pleads guilty at the time

Question 51

Sentence indications in the Magistrates’ Court (summary offences)

Answer 51

Summary offences, accused can apply to the magistrates court at any time, prosecution does not have to consent, magistrate will indicate whether custodial sentence will be given or if another sentence will be imposed.
A sentence indication can be given by the magistrate at any time during the proceedings to indicate whether the court is likely to impose an immediate custodial sentence or the type of sentence the court will impose e.g. CCO, in summary offences the accused can apply for a sentence indication without the consent of the prosecution.

Question 52

Appropriateness of sentence indications

Answer 52

A sentence indication is appropriate when the accused has agreed to, and applied for a sentence indication. A court cannot give this without the accused’s consent.
Appropriate for indictable offences only if the prosecution has given consent and agreed
Can only be given once unless prosecution agrees to a second indication

Question 53

Inappropriateness of sentence indications

Answer 53

If prosecution has strong case and disapproves, not all parties consent, accuse believes they entirely innocent, For matters that are -homicide or related to sexual offences. Judge has insufficient evidence to make judgement on most appropriate sentence(eg. aggravating and mitigating factors)

Question 54

Strengths of sentence indications

Answer 54

Sentence indications can lead to an early guilty plea and determination of the case – this reduces delays + lessens backlogs of court cases
Considered beneficial for those accused who do not have legal representation. It can offer a better comprehension of the implications of a guilty plea. Many unrepresented people fear going to jail; they do not realize there are other sanctions e.g. CCOs/fines
Sentence indications can lead to trials being avoided which reduces the stress/trauma and inconvenience for victims, their families and witnesses. Witnesses don’t have to go through cross-examination
Victims can still give the sentencing judge a Victim Impact Statement for consideration in the sentencing indication
The accused is provided certainty about the sentence they will receive; they do not need to wait until the end of trial to learn of their sentence
Sentence indications are more likely to be accepted by the community than plea negotiations
Sentence indications are able to be conducted in open court. This provides transparency and confidence in the justice system (unlike plea negotiations).

Question 55

Weaknesses of sentence indications:

Answer 55

Inappropriate sentences leads to DPP appeal to the sentence to a higher court which wastes more time and costs
It prioritizes court efficiencies above the interest of the public, victims and defendants
An accused may feel pressured to plead guilty
An early guilty plea and a reduced sentence denies victims their day in court.
Mitigating and aggravating factors may be unknown to the judge at the time of making the sentence indication.