THE VICTORIAN CRIMINAL JUSTICE SYSTEM ;DOT POINTS 5-14 Flashcards
Define fairness
In the criminal justice system fairness refers to having a fair process and a fair hearing. It is being able to have a case heard in an impartial, objective manner without fear or favour to ensure the accused is treated without prejudice. It requires each individuals circumstances to be considered as fairness does not equal equality.
Define access
access is one of the principles of justice. When referring to access in the criminal justice system it means that all people should be able to access and understand their legal rights and pursue a case. It refers to the ability to make use of processes and institutes within the criminal justice system
Define equality
In the criminal justice system equality means that all people should be treated equally before the law with an equal opportunity to present their case. This means that there should be a process free from bias or prejudice with an impartial decision maker.
What is a committal proceeding?
committal proceedings are a part of pre-trial procedures. They take place in the Magistrates court when an accused has been charged with one or more indictable offences. and has pleaded not guilty.
What Is the purpose of committal proceedings?
act as a filtering system to test the strength of a prosecutions case and to give the accused the opportunity to understand the case and cross examine witnesses.It is considering the following factors
-can the case be heard summarily,
is there enough evidence to go to trial?,
has the accused pleaded guilty?
and will their be a fair trial?
What happens if committal evidence is sufficient?
If the magistrate find their is sufficient evidence to support conviction the accused is committed to stand trial and is either released on bail to wait for trial or held in remand
What is the final stage of committal proceedings and what does it involve?
committal hearing the committal hearings give the accused the oppurtunity to question the prosecution’s witnesses and make submissions about the charges. After the evidence and submissions, the magistrate decides whether or not to commit the accused
What happens if the committal evidence is not sufficient?
if the magistrate decides their is not sufficient evidence to support a conviction the accused is discharged and allowed to go free.If further evidence is found the accused can be brought before the court again, because the committal proceeding is not a trial and the accused has not been found guilty or not guilty
What occurs after a committal proceeding?
once sufficient evidence has been established and the accused is committed to trial, documents are transferred to the DPP who will file an indictment ( written statement of the details of the change) which will commence criminal proceedings. The accused can plead guilty at any time which will result in the case being listed for a plea hearing
Link the Purpose of committal proceedings to Fairness
committal procedures make sure that there is a fair trial by ensuring that the prosecutions case is disclosed to the accused, allowing the accused the opportunity to hear or read evidence and cross examine witnesses.This allows the accused to put forward a case in the early stages if they wish and ro properly prepare and present. case
Disadvantage of committal proceedings in relation to fairness
committal proceedings can add to the delay of getting a case to trial, which can reduce access to the criminal justice and also increase the risk of an unfair outcome. as a result one have suggested that strong cases should proceed directly to trial and bypass committal stage.
Advantage of committal proceedings in relation to equality
the onus (responsibility) is on the prosecution to establish to the court that there is enough evidence to support age conviction trial. if they cannot do that, the accused is discharges. this onus supports the principle that the accused is innocent until proven guilty and does not ned to prove anything at this stage
Link the purpose of committal proceedings to access
commmittal proceedings enable the courts to determine whether an indictable offence is appropriate to be heard and determined summarily. This gives the accused the opportunity to take advantage of court processes and institutes to pursue their case and get the best possible outcome
disadvantage of committal proceedings in relation to access 1
the services of a legal representative can be expensive. this adds to the cost of the accused, who may not me working if they are in remand, and could increased the risk of an unfair outcome
disadvantage of committal proceedings in relation to access
committal proceedings can contribute to the stress and trauma experienced by the accused and the victim and there families. for some victims this stress and trauma may see them not wanting to evidence which can reduce access to justice
define plea negotiations
plea negotiations encourage the early determinations of criminal cases without going to trial. It involves the discussion of the prosector and accused about the charges that have been laid.
What are the possible outcomes of plea negotiations?
- fewer charges( some charges may be dropped),
- lesser charges (an alternative offence with a lesser sentence)
What is one main condition of plea negotiations?
any negotiations are conducted without prejudice, meat ay offers made by either party cannot be used against them and the accused should feel free to negotiate wi though fear of what they say being used in court
What happens after a plea negotiation is completed?
once an agreement has been reached the accused will need to be sentenced by the court, who will be informed of the charges the accused has pleaded guilty to . before plea negotiations take place the victim should be considered
What is the aim of plea negotiations?
It aims to assist in resolving criminal cases by ensuring that a guilty plea adequately reflects the crime committed and that charges reflect the victims and communities values
How can plea negotiations improve access?
they can improve access as they reduce stress, cost, time, trauma and inconvenience, which benefits the accused and he victim as well as thew idea community.
What factors should be considered before starting plea negotiations?
- whether the accused is willing to cooperate with investigation or prosecution of a co-offender or other offenders
- strength of prosecution case
- the accused is willing to plead guilty
- witnesses may be reluctant or unable to give evidence
- a full trial may have adverse effects on victims/witnesses
- time and expense of full trial
What are some strengths of plea negotiations in reference to fairness?
- it ensures predetermination of criminal case
- victims and others are saved the trauma , inconvenience and distress of the trial process’
- for the accused the chance of a reduced sentence
What are some strengths of plea negotiations in reference to access?
-it saves the costs associated with a full trial or hearing
What are some strengths of plea negotiations in reference to equality?
the agreement can still reflect the criminality of the offender.
What are some weaknesses of plea negotiations in reference to fairness?
- Victims and community may feel that the accused is “let off” or will get lenient sentence
- the accused may feel pressured into accepting the deal
- negotiations are held privately an do not need to be disclosed
What are some weaknesses of plea negotiations in reference to equality?
- it avoids the need for the prosecutor to prove the case beyond reasonable doubt
- if the negotiations no not succeed either party may get an insight in to the other persons case
Define sentence indication
sentence indications cap the maximum sentence that may be imposed as long as the accused pleads guilty at first opportunity. Indictable offences can only be given if the accused applies for one and the prosecution agrees.
What is the aim of sentence indications?
so encourage early determination of criminal cases and to save time, cost, resources, stress and convenience of a trial haring as well as giver early closure to victim and families.
When are sentence indications binding?
only if the accused pleads guilty at first opportunity
When are sentence indications not binding?
If the accused does not plead guilty at the first opportunity a different judge must preside over the trial and the sentence is not binding
When do you not have to apply for a sentence indications?
when it is a summary offence.
Strengths of sentence indications
- can result in the early determination of the case
- can save money and resources
- can be conducted in open court= transparency
- the accused is not bound to accept
Weaknesses of sentence indications
- the judge is not obligated to grant the accused request of the sentence indication= if accused consider pleading guilty
- in higher courts the consent of the prosecution is needed.=limits regime
- for indictable offences the judge only needs to indicate if it would impose an immediate term of imprisonment
What is the original jurisdiction and appellate of the Magistrates court?
og- Can hear all summary cases and indictable offences heard summarily. It does all committal proceedings, bail and warrant applications
app- no appellate jurisdiction
What is the original and appellate jurisdiction of the County Court?
Og- indictable offences except murder, attempted murder,certain conspiracies and corporate offences
appellate- Cases from the magistrates on conviction or sentence
What is the original and appellate jurisdiction of the Supreme Court (TRIAL DIVISION) ?
Og- most serious indictable cases
app- cases from the magistrates court on points of law
What is the original and appellate jurisdiction of the Supreme Court (COURT OF APPEAL) ?
Og- none
Ap- appeals from the county court or the Supreme Court (TRIAL DIVISION)
What are the main reasons for having a court hierarchy?
allows for specialisation, meaning that different courts develop their own areas of expertise, in turn creating a more efficient and consistent system. Court hierarchy also allows for appeals, this provides fairness and allows for mistakes
Who is the appellant?
the party who appeals
Who is the respondent?
the other party in the case who has not appealed
What are the three main grounds of appeal?
- where the law hasn’t been properly applied
- where the severity of the leniency of a sentence is questioned
- where the conviction is questioned, guilty or non guilty
Who are the key personnel in a criminal trial?
judge, jury, parties and legal practitioners
Define judge
the judge acts as an impartial party who ensures court proceedings are followed according to the rules and ensures parties are treated fairly. list responsibilities
What are the main responsibilities of a judge?
- managing the trial
- deciding on admissible evidence
- attending to jury matters
- giving directions to the jury and summing up the case
- handing down sentence
Describe the role of the judge in managing the trial
This requires the judge to ensure that court procedures are followed and parties have an equal opportunity to present their case. The judge may give directions to parties about time limits and make orders about documents and evidence to be presented
Describe the role of the judge in deciding on admissible evidence
The evidence act 2008 vic governs what is admissible evidence, it must me relevant and not someones opinion. generally hearsay evidence is admissible
Describe the role of the judge in attending to jury matters
The judge will provide potential jurors with information about the trial to ensure any person can be excused or dismissed if necessary. A judge will also provide direction to the jury about the law, evidence or procedure
Describe the role of the judge in giving directions to the jury and summing up the case
As well as directions the judge will be required to summarise the case to the jury, explain the law and identify evidence that will assist the jury
Describe the role of the judge in handing down sentences
once the jury comes back with a verdict, if the accused is guilty or pleads guilty the judge hands down a sentence.
What power does the judge hold? in regards to legal rep
the judge can order that the VLA provide legal representation to the accused. Th judge will only do this if they believe that having no legal representation will jeopardise having a fair trial
What is the judge obligated to do if the accused is self represented?
responsible for assisting the self represented accused in procedural matters or legal terminology
What is the jury system?
the jury system is a trial by peers, which provides the opportunity fro community involvement and the law to be applied according to community standards. The jury is the decider of facts and are not involved in sentencing
How many jurors make up a jury in a criminal case? and how are they chosen?
12 people who are randomly chosen from the electoral roll.
Who are not able to be in the jury?
the illegible (lawyers), disqualified (prisoners) or excused (significantly unwell.
Who can challenge the jurors?
Both the prosecution and accused can
When challenging jurors how many times can the parties commence this process
unlimited is it is with cause and and a limit is put on the amount of times without cause
What are the main responsibilities of the Jury?
- Be objective
- To listen and remember the evidence
- To understand directions and summing up
- deliver a verdict
Describe the role of the Jury in being objective
a jury must be unbiased and open minded. there must not be any connection to any of the parties to ensure that the decision of whether or not the accused is guilty is based on the facts.
Describe the role of the jury in listening and remembering the evidence
the jury must not conduct their own investigation, doing so can lead to penalties and discharge of the jury. the jury must make sense of the evidence presented in court
Describe the role of the jury in understanding directions and the summing up
the jury is required to listen to directions and the summing up by the judge. they may ask for an explanation on points they don’t understand.
Describe the role of the jury in delivering a verdict
A jury will deliberate privately and confidential, undertaken freely and without co-evision in order to reach a verdict. ac criminal jury must aim for a unanimous verdict (all jurors for murder, treasons and some drug offences) or majority (11/12 may be accepted for other offences.)
What are the responsibilities of the parties ? (accused and prosecution)
- give an open address
- assist the judge in matters
- present the parties case
- give a closing address
- make submissions about sentencing
Explain the role of parties in giving an open address
This starts with a statement to the jury of the prosecutions case using only evidence that has been seen by the accused. if the accused is represented they must present a response using only evidence seen by the prosecution.
Explain the role of parties in assisting the judge in jury matters
both parties assist in empanelling a jury, challenging potential jurors and requesting the trial judge give the jury direction.
Explain the role f parties in presenting the parties case
the prosecution must present to a jury all credible evidence. Unlike the accused who can choose to say nothing
Explain the role of parties giving a closing address
the prosecution sums up the evidence after the lose of all evidence as can the accused. Both parties are entitled to give a closing address
Explain the role of the parties in making submissions about sentencing
once the accused is found guilty, both parties are expected to attend trial. The prosecution is responsible for finding the relevant law as well as to act in a way which is unbiased.
Who are legal practitioners?
legal practitioners include solicitors, who draft documents, communicate with other parties and court, research and develop evidence and instruct the barrister who presents the evidence at trial and argues the accused case on their behalf
What is the role of legal practitioners ?
They have the duty to the court and the administration of justice. Legal practitioners cannot mislead or deceive the court, facts must be correct and any laws set by previous cases must be applied
Specific responsibilities of legal practitioners
- be prepared and ready to proceed with evidence
- comply with their duty to the court by listening to any directions given
- present the access case in the best possible light, give response to the prosecutions opening address
Define sanctions
a sanction is a penalty imposed by the courts on a person who’s as been found guilty of an offence. The sentencing act sets out the courts powers to impose sanctions.
What are the two purposes of the sentencing act
to promote a consistent approach to sentencing and provide fair procedures when it comes to punishing
What are the main purposes of sanctions ?
- rehabilitation
- punishment
- deterrence
- denunciation
- protection
Define rehabilitation
aims to address the underlying reason for the offender committing the crime, treating the offender will help prevent the accused form reoffending. Ccos can be used
Define punishment
aims to seek revenge on the offender so that the victim of the crime feels that justice has been achieved and the community feels it has received retribution. can be combined with deterrence
Define deterrence
aims to discourage other people from committing similar crimes, this is referred to as general deterrence. Sanctions can asp work to discourage the offender from re-offending, this is known as specific deterrence
Define denunciation
the court may indicate disapproval, especially for harsher sentencing that may involve violent crimes such as violent rape
Define protection
aims to safeguard the community such as putting someone in prison. serious offenders will get longer sentences, preventing them from reoffending
What are the main types of sanctions
- fines
- community correctional orders
- imprisonment
Define fines
a fine is an amount of money paid by the offender to the state of Victoria, a fine can be combined with another section to achieve more than one purpose
can also impose restitution or compensation order on offender
How are fines calculated?
fines are expressed in levels with 2 being the highest fine which attracts a fine of 3000 penalty units and 12 is one penalty unit)roughly $57
Fairness and equality in relation to fines
the court must take into consideration the financial circumstances of the offender as well as the nature of the burden it places on them.
What are the purposes of fines?
punish- the amount should be enough to punish the offender
- sepcific deterrence as well as general deterrence
- denunciation a higher than usual fine = not acceptable
Define community correction order
a cco is a supervised sentence served in the community. as a part of a eco the offender may undergo treatment, be required to take part n unpaid community work or take part in educational, vocational or personal development programs
When can cco’s be used as a sanction?
can impose cco’s for offences that are punishable by more than 5 penalty units. category 2 can sometimes receive cco’s but only if aged 18-21 or metal impairments.
Length of cco
magistrates = up to 2
other courts =up to 5
Conditions of cco’s
- can’t commit another crime
- must report to cco officers
- cannot eave state without permission
- if eco is not completed, must be re-sentenced
Purposes of cco’s
- punishment= limiting freedom
-rehabilitation
-specific deterrence
stops likelihood of reoffending
Define imprisonment
Imprisonment is the removal of an offender from society for a period of time. If a prison sentence is 2+ years it must state a minimum non-loral period
What is parole?
parole is the conditional release of a prisoner, meaning the offender must meet certain conditions upon being released
What considerations does a judge need to consider when before handing out the imprisonment sentence?
time held in remand while waiting for trial should be considered as apart of prison sentence
What is the maximum prison sentence in Victoria?
life which is handed out to level 1 offenders. and it can only be imposed by the Supreme Court
What is the maximum prison sentence the magistrate can impose?
2 years for a single offence or 5 years for two or more offences
Define concurrent sentences
is when there are more that one sentence running at the same time as other sentence. This means the offender will serve the longer of the two sentences
Define cumulative sentences
are when more than one sentence is imposed and they will be served one after the other. certain serious offences committed by a person on bail or parole require this.
Define aggregate sentences
are when an offender is convicted of multiple related offences and one sentence is imposed rather than multiple sentences. an aggregate sentence must not exceed the total seperate sentences that would have been applied had the offender been handed them separately
Define indefinite sentences
can only be given by the county or Supreme Court for serious offences where there is a high probability that the offender is a serious danger to the community, due to charter, age, mental condition or the gravity of the offence. review of an indefinite sentence must happen periodically and upon discharge of an indefinite sentence, the offender must undertake a 5 yer reintegration program. administered by parole board
What are the main purposes of imprisonment ?
- punish by removing them from society
- protection of society
- rehabilitation of offender through programs
- denunciation if a particularly long sentence is imposed
- general deterrence
What are the main sentencing factors?
- aggravating factors
- migrating factors
- guilty plea
- victim impact statements
Describe aggravating factors
are circumstances that increase the seriousness of the offence.this may result in a higher sentence being handed down.ex-explosives, victims suffering particular brutality, hatred, prejudice,agaimst vulnerable
Describe mitigating factors
Are circumstances relevant to the offender, victim or crime that reduces the seriousness of the offence. examples include, showing remorse, no previous record, was acting under duress is young or had a disability
Describe guilty plain reference to sentencing
before or early on the hearing /trial can result in a less severe sentence. The prosecution, accused, victim or society may significantly benefit from an early guilt plea as the time, stress and trauma of a trial can be avoided
Describe victim impact statements in reference to sentencing
vis contain particulars about injury, loss or damage suffered by the victim. its purpose is to assist the court when deciding on a sentence. the court must take into account the impact the offence had on the victim when sentencing the offender
