sanctions (lesson one - eight) Flashcards
lesson two
what are the different law enforcement bodies?
- victorian police
- australian federal police
- victorian sheriff’s office
- australian border force
- delegated bodies / authorities
lesson two
who are victorian police?
- the main institution which enforces criminal law relating to both indictable & summary offences
lesson two
what is the role of victorian police in enforcing criminal law?
- talk to witnesses & victims about what happened
- question suspects
- examine the scene of the crime & look for evidence
- conduct searches of ppl & /or property
- arrest accused persons
- charge ppl w/ offences
lesson two
what is the role of australian federal police (AFP)
- to investigate & enforce criminal laws which have a federal aspect
- to work w/ vic police & other investigative agencies to identify & arrest possible offenders
lesson two
what crimes does the AFP focus on?
- transnational
- serious complex & organised crime
- cybercrime & cyber safety
- child protection
- the recovery of the procees of crime
- countering terrorism & violent extremism
lesson two
who is the victorian sheriff’s office?
- the sheriff is an officer of the supreme court & delegates their powers to officers who represent them
lesson two
what does the sheriff’s office do?
- enforces warrants & orders issued by courts for ciminal disputes, typically arising from unpaid fines
- able to locate ppl & demand payment of debt
lesson two
if a person does not take any action to resolve the matter, what are officers authorised to do?
- wheel clamp a vehicle w/ prior notice
- prevent the renewal of the vehicle registration
- seize & sell assets to pay the debt
- arrest the person so that they might be imprisoned as a last resort
lesson two
what power does the australian border force have?
- the power to enforce customs, immigration, & border patrol
lesson two
what are the main functions of the australian border force?
- facilitating the lawful passage of ppl & goods
- investigatins, compliance & enforcement in relation to illicit goods & immigration malpractice
- patrol air & seaports, remote locations, mail & cargo centres & maritime jurisdiction
lesson three
what is a delegated body?
- an authority or agency given power by parliament to make & / or enforce laws
lesson three
what is an other name for a delegated body?
- subordinate authority
lesson three
why does parliament give power to delegated bodies?
- b/c parliament does not have time, expertise or local knowledge to make & enforce all laws required in the community
lesson three
what is an enabling act?
- the act passed by parliament that delegates this power
lesson three
what is a law passed by a delegated body known as?
- known as ‘delegated legislation’, often referred to as ‘regulations’
lesson three
what are examples of commonwealth delegated bodies?
- Australian Tax Office (ATO)
- Australian Secruities & Investments Commission (ASIC)
lesson three
what is the role of ATO?
- investigares serious tax-related fraud offences
- prosecutes summary offences, such as failing to lodge a tax return
lesson three
what is the role of ASIC?
- investigates breaches of legislation relating to company law
lesson three
what are examples of victorian delegated bodies?
- Consumer Affairs Victoria
- Local councils
- VicRoads
- Victorian Work Cover Authority (WorkSafe Victoria)
lesson three
what is the role of consumers affairs victoria
- takes action in relation to breaches of consumer trading laws & tenancy laws
lesson three
what is the role of local councils?
- enforce local laws where a local law makes an act / omission a criminal offence
lesson three
what is the role of vicroads?
- prosecutes certain road & traffic offences
- issue infringement notices for breaches of road rules
lesson three
what is the role of worksafe victoria?
- monitors & enforces compliance of OHS laws
- investigates & prosecutes any breaches in these laws
lesson three
what are the strengths of delegated bodies?
- more efficient for bodies w/ expertise in an area to make laws relating to that area
e.g. VicRoads & licensing - eases the workload of parliaments; they do not have time to debate every law required in the community
- changes can be implemented faster. Bodies may be more responsive to the changes in society occurring in their area of expertise
- recognises different geographic areas have special requirements
lesson three
what are weaknesses of delegated bodies?
- lack of democracy: delegated leg. is made by unelected members of the public –> undemocratic
- lack of publicity: there is no means of publicising delegated leg. this makes it difficult for the public to know who makes laws & when these are changed
- overuse: 262 new sets of Cth regulations created in 2011 alone
- henry viii clauses: allow a delegated body to amend or repel acts of parliament that are inconsistent w/ delegated legislation
- confusion: confusion may arise if more than one body regulates a particular area
lesson three
why do a number of checks or safeguards exist in relation to delegated bodies?
- parliament retains ultimate control & responsibility for delegated bodies, ensureing delegated legislation is both coherent & relevant
- regular reviews are carried out to ensure delegated bosies have acted in an appropriate manner
lesson three
what are the specific checks that exist in relation to delegated bodies?
- delegated leg. must be tabled in parliament w/n a specific period of time
- parliamentary committees (vic & Cth)
- sunset clause
- ombudsman
- court challenges
lesson three
what does ‘delegated leg. must be tabled in parliament w/n a specific period of time’ mean?
- vic parliament can disallow any proposed law of a delegated body by a resolution passed by both houses
- Cth parliament might issue a ‘Notice of Montion’ disallowing delegated leg.
- the relevant minister can be asked questions about the delegated power
lesson three
what is sunset clause?
- in vic all delegated leg. ceases to have effect after 10 yrs unless the delegated body elects to extend it
lesson three
what is ombudsman?
- indep. public service that investigates complaints about administrative decisions made by govt departments, local councils & statutory authorities
lesson three
what are court challenges?
- delegated leg. can be challenged in the SC as being ‘ultra vires’ –> beyond the scop of delegated power
lesson four
what are the institutional powers regarding arrest?
- can arrest w/o warrant any person found committing an offence if the police believe it is necessary to ensure appearence in court, preserve public order, prevent continuation / repetition of further offence, or ensure safety / welfare of public or offender
- can arrest w/o a warrant any person reasonably believed to have committed an inditable offence
- can use reasonable force when making an arrest
lesson four
what rights do individuals have regarding arrest?
- can refuse to attend a police station unless under arrest (right to liberty)
- under the Charter of Rights and Responsibilities, if arrested, must be advised of reason why at time of arrest & promptly informed of any proceedings to be brought against them
- must be released or have suitability for bail assessed w/n reasonable time after arrest
- right to silence, except it is an offence to refuse to give name & address
- arrested person has the right to be tried w/o unreasonable delay
lesson four
what is the institutional power regarding questioning?
- if a person is in custody for suspicion of committing an offence, police possess the power to question that person in a reasonable time
lesson four
what rights do individuals have regarding questioning?
- individual is to be informed of their right to silence & anything they say may be given as evidence in court
- able to communicate (or attempt) w/ friend / relative, legal practitioner
- interpreter if needed
- confidential communication w/ legal practitioner
- if under 18, parent, guardian or indep. person must be present during questioning
lesson four
what are the institutional powers regarding bail?
- prosecutor can oppose bail application
- bail not given where murder charge or if ‘unacceptable risk’
- can impose conditions on bail e.g report to a police station, reside at a particular location, not contact person, surrender passport
lesson four
what rights do individuals have regarding bail?
- entitled to bail, subject to certain conditions, w/n 24 hrs after being brought into custody
- entitled to bail during postponement of hearing or whilst awaiting trial
- entitled if case has been adjourned or awaiting sentence (unless deemed undesirable by court)
lesson four
what are the institutional powers regarding court proceedings?
- power of prosecution to prepare case, speak w/ witnesses, obtain evidence, & negotiate plea dels
- commence proceedings against that accused for purposes of obtaining a guilty verdict & punish the offender
lesson four
what rights do individuals have regarding court proceedings?
- have the case heard be an indep. court; & public hearing; tried w/o unreasonable delay
- presumption of innocence
- adequate time to prep defence
- have legal aid & interpreter if needed
- have the chance to cross-examine evidence against them
lesson four
what are the institutional powers regarding imprisonment?
- court has power to imprison a person for a period of time
- Corrections Vic has the power to search / examine a person, seize contraband, arrange for medical tests for drugs / alcohol, or require a prisoner to be electronicallt monitored
- corrections can also open, inspect, & read any mail sent to a prisoner
lesson four
what rights do individuals have regarding imprisonment?
- open air for at lease an hr each day
- adequate food; special dietary requirements where necessary; suitable clothing; access to medical care & dentail treatment
- right to practice a religion
- right to recieve at least one half-hr visit a week
lesson five
what are the two roles of the courts in the criminal justice system?
- determine a criminal case
- impose a sanction
lesson five
what does the courts role of , ‘determining a criminal case’, mean?
- plea of X guilty –> courts role to det. whether accused = guilty by managing & hearing criminal proceedings
- provide specialisation & expertise in type of case they are hearing
- provide case management & hear appeals
lesson five
how do courts provide case management?
- orders are provided & directions are given so that hearings can proceed w/o delay
e.g. est. timelines of when steps are to occur
lesson five
what does it mean for courts to hear appeals?
- appeals can be on a point of law or against conviction / sentence. the party appealing the case is known as the appellant & the other is the respondent
lesson five
what is the first step in the courst imposing a sanction?
- guilty plea / jury or mag. finds the accused guilty –> court set a date for plea hearing
lesson five
what happens during a plea hearing?
- both parties make submissions about relevant factors that should be taken into acount during sentencing
lesson five
what happens after the plea hearing?
- a sentence hearing will take place, where the judge will hand down the sanction
- a judgement will be written if this is in the higher courts
lesson five
what is original jurisdiction?
- have ability to hear certian types of cases for the first time
lesson five
what is appellate jurisdiction?
- courts have the ability to hear cases on appeal from lower courts
lesson five
what courts don’t have appellate jurisdiction?
- Mag. court
- Childrens court
- Coroners court
lesson six
what is the drug court?
- division of the MC
- based in Dandenong
- deals w/ offenders who have drug problem
lesson six
what crimes does the drug court deal with?
- deals w/ offenders who plead guilty to a crime committed under the influence of drugs or to support a drug habit
- crime must not involve sexual offences or assualt causing bodily harm
- offence committed must be within the jurisdiction of the M’sC & be punishable by imprisonment
lesson six
what can the drug court do in terms of imprisonment?
- can suspend a term of imprisonment in favour of a two-year drug treatment order (DTO)
lesson six
what must the offender do whilst completing a DTO?
- the offender is to be of good behaviour
- undergo treatment
- report to & accept visits from the drug court team
- inform the court of any changes of address
- not leave the state
lesson six
what is the Koori Court?
- division of MC
- located across numerous places in vic
- less formal environment: participants sit at a round table
lesson six
who is the koori court available to?
- only to aboriginal individuals who have pleaded guilty
lesson six
what cases does the koori court determine sanctions for?
- criminal cases, except sexual offences, domestic violence cases ot breaches of intervention orders
lesson six
what does the magistrate do in the koori court?
- can take advice from aboriginal elder on cultural issues & appropriate sentence h/w magistrate is the ultimate decision-maker & uses standard sanctions
lesson six
what does the neighbourhood justice centre provide?
- a court
- on-site support services for victims, witnesses, defendants & local residents
- mediation & crime prevention programs
- community meeting facilities
lesson six
why does the neighourhood justice centre work closely w/ the local community?
to:
- address underlying causes of offending
- provide opportunity, education & supp. for victims, witnesses, defendants & local residents
- assist in preventing crime
- stop the “revolving door” of crime & punishment
- increase the communities involvement in the administration of justice
- increase access to justice
lesson one
what is fairness?
- to treat w/o fear or favour
- is achieved in the criminal justice system when objective legal processes are in place & all parties recieve a fair & unbiased hearing
lesson one
what are the many processes that exist w/n the criminal justice system to ensure fairness?
- regulation of police questioning & that right to silence
- entitlement of the accused to know the details of the charges faced
- right to trial before an independent judge & jury
- strict rules of evidence & procedure
lesson one
what are the legislations that promote fairness?
- the Sentencing Act 1991 (vic) states as one of its purposes: “to provide fair procedures… for imposing sentences”
- the Victorian Charter of Human Rights & Responsibilities Act 2006 provides for the right to a fair hearing
lesson one
what is equality?
- the criminal justice system aims to achieve equality by ensuring all are treated w/ the status, rights & opportunities
- section 8 (3) of the Victorian Charter of Human Rights & Responsibilites specifies that “every person if equal before the law & is entitled to the equal protection of the law w/o discrimination.”
lesson one
what is access?
- to ensure all have the means or opportunity to access the legal system & attain dispute settlement
lesson one
what are examples of access w/n the criminal justice system?
- an individual must possess the ability to obtain legal advice in a language they understand
- an individual must be able to recieve legal advice or be legally represented even if they are financially disadvantaged
- an individual must be able to attend a court close to their place of residence
lesson one
what is the criminal pre-trial procedure?
- the process used to bring a suspect to court depends largely on the seriousness of the offence
lesson seven
when will a summons’ be used?
- a summons’ will be used if an individual has been charged w/ a minor offence & it is expected that they will appear in court
lesson seven
what does the summons inform?
- informs the accused the ‘mention date’ (hearing) & the MC location
lesson seven
when is a warrant used?
- a ‘warrant’ (a court order) will be used in the case of more serious offences & if the accused in unlikely to appear at court in response to a summons
lesson seven
what does arrest involve?
- the act of apprehending & taking a person into custody usually b/c the person has been suspected or observed committing a crime
lesson seven
what can police do whilst a person is in custody?
- ask for a statement
- conduct an interview
- take fingerprints
- conduct a search of the person
- take a photograph
- charge the person w/ an offence/s & grant bail
or - charge the person w/ an offence/s & deny bail
lesson seven
what is bail?
- a person who is in custody, charged w/ an indictable offence, can be granted ‘bail’ meaning that the individual will be free to await trial in the community instead of being incarcerated
lesson seven
who can grant bail?
- granted by senior police officer, bail justice, magistrate or judge
lesson seven
where can the the law w/ regard to bail be found?
- in the Bail Act 1977 (Vic)
lesson seven
why is bail granted?
- bail is granted to an accused b/c in our legal system the accused is presumed innocent until proven guilty
lesson seven
what are the exceptions to granting bail?
- granting bail would pose an unacceptable risk
- the accused had not complied w/ the conditions of bail
- granting bail would endanger the safety & the welfare of the public
- the accused may interfere w/ witnesses
- the person is accused of murder or treason or other offences under the commonwealth legislation
- the persons accused of an offence relating to stalking (under the cries ac 1958 (vic)) or offences under the Family Violence Protection Act 2008 (vic)
lesson seven
what is a surety?
- a person who is 18 yrs or older who is bound to ensure that the accused complies w/ the bail conditions, such as appearing in court when required
- a surety might also be required to provide a deposit of money or other form of secruit in order for the accused to be released on bail
lesson seven
what are examples of special conditions that might be required to ensure that the accused complies w/ bail?
- forfeiting a passport & not going near an airport or other point of international departure
- staying away from witnesses
lesson seven
what does being held on remand mean?
- an accused who is denied bail, or was granted bail but could not make the necessary payments or provide a suerty, will be held on remand (in custody) to await their trial
lesson seven
what happens if a person on remand is found guilty or not guilty
- guilty: accused foud guilty & is given a prison sentence, the period spent in prison will be deducted from the sentence
- X guilty: person on reand found X guilty or recieves a non-custodial sentence, no compensation will be given for the time spent in prison
lesson seven
what is the purpose of the mention hearing?
- to determine the plea of the accused (guilty or X guilty)
lesson seven
what happens at the mention hearing for a guilty plea?
- police prosecutor will read summary of evidence
- prior convictions read
- character evidence on defence’s behalf (optional)
sentence handed down
lesson seven
what happens at the mention hearing for a not guilty plea?
- if a matter cannot be resolved at a mention hearing due to the accused entering a not guilty plea, the matter will be adjourned to a contest mention which will occur at a later date in the MC
- both parties will present arguments & evidence
- the magistrate will decide the outcome of the case
lesson eight
what is the purpose of commital hearings?
- designed to determine whether the prosecutionhas enough evidence to gain a conviction for a person who has been charged w/ an indictable offence at trial (prima facie case = at first appearence)
lesson eight
what authority does the magistrate have during commital hearings?
- the magistrate has the authority to discontinue a case & release the defendant , who may later be re-charged if further evidence comes to light
lesson eight
what do committals ensure?
- ensure greater efficieny in the operation of the county & supreme court as time is not taken hearing cases where the prosecution evidence is weak
lesson eight
what is a commital mention hearing?
- occurs before committal hearing
- a short administrative hearing to identify the witnesses who may be called at committal & set the date of the committal hearing. the accused may choose to plea guilty or X guilty at this stage
- if matter is to be contested (accused pleads X guilty), the magistrate will be informed of the no. of witnesses & the anticipated length of the committal hearing
- date will be set for a full committal hearing
lesson eight
what are the two types of full committal hearings?
- traditional method
- hand-up brief
lesson eight
what is the traditional method of committal hearings?
- relies on oral evidence given under oath by prosecution witnesses
- prosecution witnesses examined & cross-examined
- prosecution evidence recorded in a “deposition”
- defence given option as to whether to plead & / or call witnesses
lesson eight
what is the hand-up brief method of committal hearings?
- evidence is given through the delivery of sworn statements
- most committals use this process
- particularly important is sexual assault matters - avoid rigorous questioning of a victim early on
- prosecution serves documents on defendant
- notice must be given if defence wishes to cross-examine a prosecution witness
- deposition alone (sworn statement) presented to the court
