the victorian criminal justice system. Flashcards
what is the principles of justice
a theory or concept based on what is good, ethical or right.
the underlying foundation of our legal system.
fairness,equality,access
what is fairness and what are examples of it in the legal system
ensuring impartiality within the processes of the legal system.
parties are not favoured or not treated with discrimination
eg:
-having an impartial judge
-having the same rules and procedures of court applied to both sides
-having a jury
what is equality and what are examples of it in the legal system
everyone should be given the same rights and opportunities regardless of their individual characteristics or disadvantages.
eg:
-availability of a koori court
-interpreter services
-same rules and processes applied to both parties
what is access and what are examples of it in the legal system
the ability of individuals to utilise the legal system to resolve disputes in a just matter
eg:
-being able to bring a case to court
-understanding your rights in order
-being informed of the processes of a trial
what are the two main acts that cover criminal law?
The Victorian Crimes Act 1958
The Victorian Summary Offences Act 1966
what are summary offences? where are they heard an what are two examples of them
less serious/minor criminal offences that are heard before a magistrate
heard in the magistrates court
eg: driving offences-speeding
offensive behaviour-swearing or streaking
what are indictable offences?where are they heard and what are two examples of them
serious criminal offences that are heard by a judge
heard in the county or supreme court can have committal proceedings. indictable offences can also be heard summarily
eg:
rape
murder
burden of proof
the responsibility of a party to prove the facts of the case. the burden of proof lies with the party who is bringing forward the case
standard of proof
the level or extent in which the prosecution must prove their case
what is the presumption of innocence
every peron accused of a crime is presumed to be innocent until they have been proven guilty, pleaded guilty or coming before a court
eg:
imposing the burden of proof on the prosecution
having a high standard of proof
the two main acts that are for australian rights
charter of rights and responsibilities acts 2006
international covenant on civil and political rights(1966)
rights of the accused: the right to be tried without reasonable delay
def= a person who is changed with a criminal offence is entitled without discrimination, to a guarantee that he or she will be tried without unreasonable delay.
eg
the accused should be brought to court in a timely matter
within 3 months if accused committed sexual offence. And within 12 months if the accused is committed for a trial.
rights of the accused: right to a fair hearing
def: 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
1) must be fair and public
2) right to have matter heard by a qualified and experienced judge
bail hearing= ability to be released back into community while waiting for their trial to commence
rights of the accused: the right to a trial by jury
def: when an accused pleads not guilty to a criminal charge, they are entitled to have a jury determine their guilt in court
importance:
-have a jury ensures the judge is not the only person making the decision
- having a jury spreads the decision making process.
what is the victims charter act(2006)
outlines criminal justice system and provides support services to victims of crime.
purpose is to define and recognise the rights of victims
eg:
ensuring the police communicate with victims
right to give evidence as a vulnerable witness
vulnerable witness= some children, people with cognitive impairment, victims of sexual assault
definition: the right to give evidence as a vulnerable witness refers to the adjustments that court can make to ensure that ind who are considered vulnerable witnesses are able to give evidence in a less intimidating environment.
how to determine who is vulnerable
to be illegible the crime committed has to be considered.
however a court may declare at any time that a witness is a protected witness. they are under 18 and have cognitive impairment.
right to be informed about proceedings for a victim
right to be informed about progress and investigation into a criminal offence unless the victim requests not to.
eg
if there are no charges against the person, the reason for this
how to find out date and time of proceeding
right to be informed about the release of the accused
a person who is registered on the victims list may recieve certain information on the persons whereabouts
what is legal aid and its purpose
it is an independent,government funded organisation that has been created to ensure that victorians who cannot afford to pay for a private lawyer can recieve assistance
purpose: encourage a fair and accessible justice system
what is a means test and merits test for VLA
means test: assessed based on clients income and weekly living assets
merit test: what benefit will the money provided have on the client
how can VLA assist
online info and printed info
help via phone and webchat
face to face service
What are community legal centres
Independent, non profit and community based that provide free and accessible legal centres
Funded by govt and cth
Purpose: provide free and accessible legal and related services to community and services ppl who are experiencing discrimination and disadvantage
What are generalist clc and specialist clc?
Generalist: broad legal services to people in particular areas eg:melton or st kilda. Target the areas that need more service with domestic violence, drug use etc
Specialist: particular groups of people or area of low ses eg: youth services, refugees and women
what can clc assist with?
Legal advice and short letters
Free legal advice without appointment
Duty lawyers for URGENT MATTERS
Eligibility requirements within criteria
What are committal proceedings ?
The various steps taken in a criminal pre trial to determine whether the prosecution has sufficient evidence to support a conviction in the higher courts
What are the purposes of a committal proceeding
1- determine whether the accused pleads guilty or not guilty> if believe pros has a strong case then accused may enter a plea of guilty
2- inform the accused of the case against them> accused is allowed access given by police and prosecution must disclose evidence so that accused can test strength of case
3) ensuring a fair trial> making sure prosecution disclosed case to accused giving them a chance to cross examine witnesses and put forward a case at an earlier stage
What are the types of committal proceedings
1) hand up brief = collection of all of prosecutions evidence in a documentary form.( photos, reports and fingerprints) and accused should be presented with it 42 days before and a copy to magistrate
2) contested committal hearings> held if accused wants to question witnesses in hand up brief. “Mini trial”
What are the five steps for committal proceedings
1- charger or summon
2- filing hearing
3- filing of hand up brief
4- committal mention hearing
5- contested committal hearing ( optional )
What are the strengths of committals
1- uphold the accused to be innocent before proven guilty by forcing the prosecution to prove they have sufficient evidence
2- committals save time and recourses of higher courts by filtering out weaker cases
3- the accused has the opportunity to test strength of prosecution case eg cross examine witnesses which can inform plea
What are the weaknesses of committals
1- committals can be seen as a waste of time (1.6% matters were dismissed)
2- committals are very complicated which can involve cross examining witnesses. Without the experience of legal representation the accused can find it difficult
3- committals add delay of getting the case the trial and therefore reduce the effective access to the legal system
What is a plea negotiation?
Private and informal negotiation between accused and prosecution.
Takes place between anytime of accused being charged and verdict handed down
Eg: an accused may plead guilty to a charge of manslaughter in exchange of prosecution not charging with murder
What are the outcomes of plea negotiations?
- accused pleads guilty to fewer charges with remaining not proceeding
- the accused pleaded guilty to lesser charges
What are the two purposes of a plea negotiation
1- promoting an early plea to save cost time and stress
2- resolving a criminal case by ensuring a plea of guilty reflects the crime that was committed
Appropriateness of plea negotiations
1- when accused is willing to participate in the negotiation and plead guilty
2- the likelihood of a long trial using Court Time
3- witness reluctant to give evidence
Inappropriateness of plea negotiations
1- when accused doesn’t want to plead guilty
2- short trial less time consuming and cheap
3- witness willing to give evidence
Strengths of plea negotiations x3
1- Save costs of a full trial and Minimises delay
2- victims/ families are saved from trauma, inconvenience and distress
3- advantages to the accused who may receive a Reduced d sentence due to early plea
Weaknesses of plea negotiations x3
1- negotiations are informal and Held private. No legislation and Not reported
2- controversy arises when serious charges are downgraded. Ppl lose faith in Legal System
3- offenders who have committed serious crimes are back in community earlier.
What is a sentence indication
Encourage the accused to plead guilty. An early request from accused to judge/mag as to whether accused will receive a custodial sentence or non custodial sentence if decide to plead guilty
Summary and indictable offences
What are the three guidelines to a sentence indication
1- when a non custodial indication is given the accused pleads guilty and the decision is therefore binding
2- if a person pleads guilty after sentence indication it can be changed to a non custodial pentalty
3- if a sentence indication has been given and the person pleads not guilty then they must be reposted to a different judge
What are the two purposes of sentence indications
1- provide accused with clarity about likely sentence imposed
2- saving the cost, time recourses stress and inconvenience
Appropriate sentence indication vs not
A- when accused has agreed and applied for a sentence indication
I- does not have the accused consent of sentence indication
A- appropriate for indictable offences only if prosecution has agreed
I- summary offences and prosecution has not agreed
Strengths of sentence Indications x3
1- can lead to early guilty plea- this reduces delays and back log of cases
2- can lead to trials being avoided which reduces stress and trauma of families and victims
3- more likely to be accepted in community then plea neg
Weaknesses of sentence indications x3
1- in appropriate sentences can be indicated so that saving of recourses will be better for courts
2- accused may feel pressured to plead guilty rather than mag judge determine guilt through evidence
3- on early guilty plea and reduced sentences denies victims time in courts
