U1 AOS1 Flashcards
define parliament
formal assembly of representatives of the people that is elected by the people and gathers to make laws
government
ruling authority with power to govern, formed by the political parties (if coalition) that holds the majority in lower house in each plmt
opposition
political party that holds second largest number of seats in lower house- question govt about policy matters and is responsible for holding govt accountable
cross benchers
MPs who arent members of either govt or opp, (named after their seats)
statute
laws made by plmt; bills passed through plmt and received royal assent
royal assent
formal signing and approval of a bill by the GG/Gov. after which the bill becomes an act
jurisdiction
lawful authority of a court, tribunal or other dispute resolution body to decide legal cases
common law
laws made by judges by through decisions made in cases (case law/ judge made law)
precedent
principle established in a legal case that should be followed in later cases where material facts are similar (binding or persuasive)
what is a summary offence
minor/ less serious crimes committed by the accused
where are summary offences heard?
final hearing- both parties before a magistrate without a jury (lowest and busiest)
summary offences pre trial procedures
no committals- usually a single mention hearing
summary offences sanctions
adjourned undertaking- w or w/o recorded conviction, fines, CCO, imprisonment (max 2 years/ 5 years)
Summary offences legislation
Summary offences Act 1966 (Vic)
summary offences examples
drink driving, jaywalking, minor assaults, minor drug possession, common assaults
what are indictable offences
serious/ more severe crimes
where are indictable offences heard?
committal proceeding in Mag court, then county or supreme court
indictable offences legislation
crimes act 1958 (vic)
indictable offences examples
murder, rape, kidnapping, culpable driving causing death
what are indictable offences heard summarily
a group if indictable offences that are less serious
where are indictable offences heard summarily heard?
during committal proceeding the Mag will determine if its appropriate
when can an indictable offence be heard summarily
the offence isn’t punishable by more than 10 years (max)
the court agrees and deems it to be appropriate
accused consents
why are indictable offences heard summarily?
they are less expensive and take less time
the maximum penalties are less severe
indictable offences heard summarily legislation
Criminal Procedure Act (2009)
Prosecution
presents evidence in court on behalf of state/Cth against accused
Director of public prosecutions and crown prosecutors- serious crimes
Vic Police- minor crimes
accused
charged with a crime
what is the burden of proof
requirement within legal system that places responsibility on one party to prove the facts of the case
who has the burden of proof crim
prosecution
why does the prosecution have the burden of proof
since the prosecution has accused the wrongdoer, they must establish the facts to back up their case
burden reversed
if defence is mental impairment
possession of an illegal substance on property and cannot demonstrate to the court to the contrary
what is the standard of proof
level of proof or the certainty or strength of evidence required to prove the case- beyond reasonable doubt, meaning there logical or reasonable conclusion
what is the presumption of innocence
a person who has been accused must be presumed innocent until proven otherwise (this is why they are called the accused before guilt is found)
presumption of innocence legislation
S25 Charter of Rights and Responsibilities Act 2006 (vic)
How is the POI upheld
*right to silence (name and address)
*application for bail- unless abscond, danger to community/ themselves
*committals- demonstraate sufficient evidence for trial
*prior convictions cannot be revealed until sentencing
*police must reasonably believe that a person has committed a crime before arresting them
*right to appeal
what is the right to be tried without unreasonable delay
*without discrimination- every accused person is entitled to this provision
*‘reasonable’ is undefined- length of delay, complexity of case, number of offences and reason for delay
why does the right to be tried without unreasonable delay need to be upheld?
*witness memories may fade- validity/ reliability
stress on the accused/ victim/ families
*media attention- increased potential juror bias
*increased legal costs
what are the strengths of the right to be tried without unreasonable delay
*don’t have to endure long periods of stress
*witnesses are more likely to remember the key facts- increases reliability
what are the limitations of the right to be tried without unreasonable delay
*may be considered ‘reasonable’ if delay resulted from accused’ actions
*if the delay is ‘reasonable’, witnesses memories may fade
right to be tried without unreasonable delay legislation
S21/25 of charter
What is the right to silence
*underpinned by POI/ helps avoid self incrimination
*no adverse/ negative conclusions can be drawn from silence/ ‘selective silence’ cannot conclude guilt
*jury can be directed by judge
what is the exception to the right to silence
name and address if the police believe a crime has or is about to be committed/ person may help the investigation
why does the right to silence need to be upheld?
*reinforces burden of proof
*ensures vulnerable ppl don’t self-incriminate
*reduces the power imbalance b/w prosecution and accused
strengths of right to silence
*upholds POI
*reduces power imbalance
*juries don’t make inferences from silence- fairness
weaknesses of right to silence
*jury may still inadvertently believe there is a failure to defend
*can cause decreased cooperation with police- justice barriers for victims
right to silence legislation
Evidence Act 2008 (vic)
what is Right to Trial by Jury
if plead not guilty to indictable offence- 12 peers determine the guilt
why does the right to trial by jury need to be upheld
*so that there is an impartial and unbiased decision maker (a cross section of the community)
*so lawyers use clear/ plain eng instead of legal jargon- increased understanding of the *requirement for the whole jury to agree to standard of proof
strengths of the right to trial by jury
*accurate reflection of society- increased fairness
*encourages lawyers to speak clearly
trial by jury legislation
Juries Act 2000 (vic)
Criminal procedure Act 2009 (vic)
S80- constitution- AUS OFFENCES ONLY
who are victims
a person who has suffered directly or indirectly because of a crime
victims legislation- and what does it represent
Victims Charter 2006 (vic)
*recognise that victims should be offered certain infoduring the investigation
*reduce the the likelihood of secondary victimisation which may be experienced through interaction with CJS
*identifies the primary victim- a person who has suffered direct injury bc of a crime
*the vulnerabilities stemming from victims that are of a young age or w certain disabilites
What is the right to give evidence using an alternative arrangement
a situation where a victim is also a witness to the crime and may be required to testify in court. when this applies, victims are entitled to certain adjustments to accommodate and lessen further trauma/stress
When does the right to give evidence using alternative arrangements
victims of: sexual offences, family violence, offences of obscene/ indecent language or threatening behaviour
why does the right to give evidence using alternative arrangements need to be upheld
to avoid secondary victimisation- this refers to instances whereby the victim of a crime suffers further harm through the negative experiences of the CJS
right to give evidence using alternative arrangements legislation
Criminal Procedure Act 2009 (vic)
how is the right to give evidence using alternative arrangements upheld
*giving evidence from outside the courtroom by CCTV- witness doesn’t physically face accused or risk contact before or after the session t/f decreasing the risk of psychological harm
*using a screen to remove the accused from witness’ line of vision- doesn’t have to see accused
*closing court except specified people while witness gives evidence- less intimidating
What is the right to be informed about proceedings
an entitlement whereby victims can be provided w info about the case they’re involved in
why does the right to be informed about proceedings need to be upheld
*they often have a strong desire to see justice carried out/ hold accountable
*uncertainty is eliminated- decreased risk of secondary victimization
how is the right to be informed about proceedings upheld?
offences accused is charged with,
key developments in the case,
outcomes of the trial
what is the exception to the right to be informed about proceedings
not entitled to info that puts investigation at risk
right to be informed about proceedings legislation
Victims Charter 2006 (vic)
what is the right to be informed about the release date of the accused?
victims of violent crimes can apply for victims register and be informed about the likely release date
why does the right to be informed about the release date of the accused need to be upheld
*strong desire to know the offender is in prison- comfort
*victims can take precautions such as applying for or extending an intervention (order to prevent contact)
*can make submissions to the Adult Parole Board to express effects the release may have on him- considered when deciding if parole is granted
right to be informed about the release date of the accused legislation
S17 Victims Charter Act 2006 (vic)
what is justice
the maintenance of what is just or right by the exercise of authority over power; giving of due desserts
what is fairness
all people can participate in the justice system and its processes should be open and impartial
purpose of fairness
designed to ensure that:
innocent people are not found guilty of crimes they didn’t commit
-public confidence is maintained
what are impartial processes
courts and personnel are independent and impartial= don’t show bias towards either party and the case must be decided on facts and law
examples of impartial processes
-judge/ magistrate and jury must acknowledge any association with either party and remove themselves from the case
-jury members are empaneled from the community at random to ensure limited bias
-both sides can challenge a jury member if there is a perceived bias
what is apprehended bias
a situation where a fair-minded person might believe that the person hearing or deciding a case might not bring an impartial mind
what are open processes
the ability for the community to be informed and scrutinize the legal system through processes being transparent. This allows legal personnel to be held accountable and answerable for their actions
open processes examples
-the requirement that hearings be conducted in public- with certain exceptions
-court judgements (decisions) are made available to the public
-allowing the community, media and victims to attend court hearings
-juries- members from the community being able to participate in and decide on a verdict
*courts may need to be closed to the public or media at times to protect a witness or a child
what is participation
this feature refers to the ability for various individuals- the accused, victims, and witnesses engage with the criminal justice system
participation examples
-the opportunity to prepare their case through knowing the facts (during committals the prosecution must disclose all relevant evidence to the accused)
-the opportunity to examine witnesses (both parties should have the opportunity to cross examine witnesses provided by the other side apart from vulnerable witnesses)
-use of a lawyer (the accused should be able to defend themselves through legal assistance chosen by them, if they are eligible should receive assistance via VLA)
-allowing victims to use alternative arrangements when giving evidence (vulnerable witness)
- victim impact statements
-the right to not testify against oneself (right to silence)
- POI
what is equality?
all ppl engaging w the justice system and processes should be treated in the same way. However, if the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow everyone to engage with the justice system without disparity/ disadvantage
equality legislation
Human rights charter:
-everyone is equal before the law- Lady Justice is blind
-everyone is entitled to equal protection of the law without discrimination
-everyone has the right to equal and effective protection against discrimination
what is the same treatment
formal equality- all individuals are treated the same and given the same levels of support regardless of their personal differences
examples of same treatment
all accused are entitled to POI
-everyone who contacts a community legal center should receive the same info
-all accused who pleads not guilty should be given access to the courts system
-all victims should be provided info regarding proceedings- unless they don’t want to
-all accused people should be entitled to a fair trial w the same processes
what is different treatment
substantive- legal system did treat ppl in the same way but in doing so causes disadvantages or disparity then measures/adjustments should be put in place to allow people to participate in the justice system
examples of different treatment
-the provision of interpreters for all individuals- accused/victim s/witnesses who don’t understand Eng.
-the provision of legal aid to support accused who cannot afford legal rep
-alternative arrangements made to support vulnerable witnesses
-the provision of the Koori court for FN offenders
What is access
all ppl should be able to engage w the justice system and its processes on an informed basis
what is engagement
physical access-location of courts in Vic (travel time)
technological access-hearings and conferences can be conducted virtually/online (may be hindered by lack of internet access/ elderly ppl/ ppl w a disability)
financial access- VLA is limited in its funding and thus ability to support individuals who don’t have the means for legal rep.
what is an informed basis
ppl should be aware of their legal rights and how to navigate the processes involved in their case. This means receiving adequate info to make an informed decision.
-education (info should be in plain eng)
access to legal support services- having free access can help ppl be more informed abt rights
-legal rep
What is VLA?
an independent, govt funded agency that provides free, legal information to the community and legal advice and representation to people who cannot afford to pay for a lawyer to assist with their case
Purposes for VLA
-provide accessible legal aid services, such as providing individuals w info and advice over the phone
-provide free or low-cost legal aid services to those who need it the most, ensuring legal aid is available on an equitable basis in vic
-ensure legal aid services are distributed to parties based on their financial situation, individual circumstances, and seriousness and nature of their problem
-ensure legal aid services are of high-quality, such as by providing a quality framework to help lawyers conducting legal aid work
-provide improved access to justice and legal remedies
-conduct research and evaluation to ensure effective legal aid is provided to individuals based on their different situations
what are the roles of VLA for the accused
-provide free legal info
-provide free legal advice
-provide duty lawyer services
-provide grants of legal assistance
VLA providing free legal info
general info available on website, in brochures and over phone
who is free legal info available for VLA
everyone
free legal advice VLA
advice re court proceedings/ procedures that will apply to a specific case- on phone/ in person/ video call
free legal advice who VLA
based on income w priorities on-
children
FNP
those w a disability
those who cannot speak eng
duty lawyer VLA
present in Mag and childrens court to provide case specific advice for hearings that day
can extend representation depending on circumstances
NOT available for ind. offences or committals
who are duty lawyers available for VLA
free for:
child protection
youth crime
adult summary crime
intervention orders
family matters
some civil matters
for adult criminal offences, accused individuals not in custody must also satisfy the income test
VLA grants of legal assistance
by a VLA or external VLA funded lawyer who assists with preparation, including relevant documents as well as rep.
who can receive a grant of legal assistance
must satisfy a means test
VLA may also consider how likely the case is to succeed and if the case will benefit the community
what is a duty lawyer
a VLA lawyer who is at court on a particular day to help ppl who come to court for a hearing. Generally, no prior hearing w accused
what is an income test
financial threshold applied by VLA to determine whether a duty lawyer can rep an accused. Threshold is met when accused has limited income (e.g main source of income is through govt welfare)
what is a means test
a financial threshold that VLA applies when individuals are seeking a grant of legal assistance. It is different to an income test in that considers a persons income and assets. If a person receives more than $360 a week in income after living expenses are deducted, they are not eligible
merits test
this test applies to receiving grants of legal assistance. Based upon the legal matter and seriousness of the offence
what are the roles of VLA for victims
provide legal info
provide a victims legal service
provide duty lawyer services
provide grants of legal assistance
provide free legal info victims VLA
on website and thru Victims Legal Service
also provides links to external resources such as child witness service, Victims of Crime assistance Tribunal and OPP
Provide a victims legal services
specialist advice phone line that provides legal info and advice, particularly regarding the financial impact of crime
it is in partnership with VLA, CLCs, and Aboriginal legal services
who can access the victims legal service
all individuals affected by crime for legal guidance or advice re applying for financial aid from the Victims of Crime Assistance Tribunal on filing for restitution and compensation from the perpetrator
duty lawyer for victims
advice and rep. re intervention orders
victims duty lawyer who
all victims are entitled to info from duty lawyers but advice and in court advocacy are prioritized based on certain criteria- children and adults w disability prioritized
grant of legal assistance victims
for intervention order
grants of legal assistance victims who
VLA considers many factors such as the merits of the matter and the means of the recipients
VLA fairness strengths
-provisions of duty lawyers provide advice and assistance to various accused persons, ensuring a fair hearing
-VLA is guided by victims charter to uplift victims and ensure their rights set out in the charter are protected. The charter is legally binding which ensures VLA treats all victims fairly
VLA fairness weaknesses
-VLA’s limited budget means its only able to provide legal advice and rep. to a small number of accused persons. Many accused persons charged w criminal offences do not meet VLA’s eligibility criteria but cannot afford a private lawyer. As a result, VLA is limited in its ability to ensure all individuals can understand the case against them, participate in the criminal proceedings and adequately present their case
VLA equality strengths
-VLA provides free info on its website to all ppl regardless of personal characteristics
-eligibility criteria ensures legal support is provided to those most in need
-victims are able to find out more info about rights and access resources by calling VLA- many languages and an interpreter will be organized if necessary
-VLA provides video resources in Auslan for deaf/HOH
VLA equality weaknesses
eligibility of a duty lawyer/grants mean very few ppl gain access to free legal rep. Whilst those most in need are prioritized, others who are not considered to warrant help are unable to receive assistance. Individuals who cannot afford rep are not uplifted to receive same treatment
VLA access strengths
-free info on website which is accessible to all
-services can be accessed in person/over phone/online
-duty lawyers and grants increase an individuals access to justice system and criminal proceedings, ensuring they can participate in the process in an informed manner
-victims are supported through various services offered by VLA, such as Victims Legal service and VLAs commitment to uphold the charter
VLA access limitations
-means and income test prevent many ppl from accessing many services of VLA
-VLA does not provide advice about all types of manners, therefore, limiting access to justice
-VLA info may be inaccessible to ppl who dont have access to internet connecting devices
-limited in its ability to facilitate access due to a lack of funding
what are CLCs
independent, govt funded organizations that aim to provide free legal services for individuals including providing legal info, advice and ongoing assistance and rep. approx 47 CLCs in Vic
CLCs have a reciprocal relationship w VLA- they work together to support individuals within the justice system
generalist CLCs
these are established in designated suburbs or Local Government Areas (LGAs) to serve the community
E.g- Ballarat and Grampians CLCs, Southeast Monash Legal Service
Specialist CLCs
established to focus on a particular group of individuals in society that may be deemed vulnerable to receiving legal assistance
E.g- YouthLaw (under 25), Asylum Seeker Resource Centre, Senior Rights Victoria
who can CLCs not support?
rarely become involved w assisting an accused for an ind. matter. CLCs receive funding via VLA and are generally not equipped to provide support w complex and serious legal issues. CLCs cannot assist the accused w:
-homicide related charge
-sexual offences
-aggravated assault
-robbery (dependent on nature of the crime)
CLC factors for providing support
-type of legal matter the accused needs help w
-whether other assistance in available
-whether the person has a good chance of success
-whether the CLC has the resources to assist
what are the roles of the CLC
free legal info
legal advice and assistance
ongoing casework
CLC free legal info
online info
handbooks/ pamphlets in relation to common legal issues (fines, insurance, consumer law, contract law)
CLC legal advice and assistance
-CLCs can provide face to face assistance w drafting letters and completing forms (applying for grants of legal assistance, visa applications, intervention orders)
-CLCs can also assist w wills, resolving neighborhood disputes, employment contracts
CLCs ongoing case work
some CLCs will provide case work or assistance for an accused this involves ongoing rep. and assistance, each CLC will have its own eligibility requirements
what are the CLC roles for victims
basic legal info
legal advice and assistance
duty lawyer services
ongoing casework
Legal advice and assistance for victims CLC
available via online, phone, face to face
-can assist victims w matters such as filling out forms or to direct victims to the best organization to assist their matter
CLC duty lawyers for victims
-family violence protection orders
-mag court can give free legal advice and rep. on the day to family violence intervention order hearings on the day
CLC victims ongoing casework
in relation to an application for financial assistance or an application for a family violence intervention order
CLC fairness strengths
-high quality, free legal support, and education to members of the community. This enables individuals to adequately participate in legal proceedings and present their cases in the best light, encouraging just and fair outcomes.
-victims of crime are able to receive legal support from professionals, tf easing the emotional stress of the trial- victims can better participate and provide accurate statements to court
-CLCs can provide legal rep. to accused indiv.- promotes fairness as accused is provided w necessary assistance to navigate the complex criminal justice system and adequately present their case
CLC fairness limitations
-often cannot provide legal rep. in court- accused indiv w/o financial means to gain legal rep must self rep., unless they are eligible for assistance from VLA= limits participation
-cannot provide assistance to all victims of crime, meaning some victims may not be able to participate in justice system
CLCs equality strengths
-often provide an interpreter
-specific advice to victims and cater to indiv circumstances, regardless of personal characteristics
CLC equality strength example
Disability Discrimination Legal service provides specialized services, ensuring ppl are uplifted and receive tailored services
CLC equality limitations
-eligibility requirements for duty lawyer or legal rep. from CLC are strict- very few indiv. gain access (priorities most in need but ppl in middle ground aren’t supported)
-lack of funding impedes ability to take on new cases
-majority are located in metro melb-restricts achievement of equality as decreased access to services in rural areas.
CLC access strengths
-provide free legal advice and info, enhancing access to and understanding of legal system
-specialist CLCs can provide tailored advice abt specific areas of law, increasing access to personalized assistance
-located across vic and some CLCs provide assistance over the phone
-victims are able to receive free legal assistance and support from CLCs that is specific to their case (such as filing/applications)
CLCs access weaknesses
-don’t promote access to resources for very serious criminal matters
-not as many CLCs in rural areas- limiting access for ppl in remote areas
-limited in ability to facilitate access to legal resources and support due to lack of funding
what are plea negotiations
a private discussion (or communications via email) that occurs w/in criminal justice system b/w prosecution and accused so that accused can consider pleading to lesser charges or fewer charges. The prosecution may also avoid trial
when can pleas occur
for summary or ind off. at any stage before sentencing
how do plea negotiations occur
via phone/ email/ letter/ face to face (usually in writing)
when accused indicates to prosecution that they are willing to discuss the charges although either party can indicate that they are prepared to consider negotiations
are victims a party
no
are sentences guaranteed in plea negotiations?
no. The prosecution cannot offer the accused a reduced sentence, they don’t have the authority, only the sentencing judge does
although a lesser/fewer charge will generally warrant a reduced sentence
what are fewer charges?
number of charges- may choose to plead guilty to a reduced no. of charges.
what are lesser charges?
seriousness of charges
what basis do plea negotiations occur on?
‘without prejudice basis’
any offers made by either party during negotiations cannot be used against them if the negotiations are not successful. T/f the accused may be free to negotiate w/in the prosecution w/o fear that whatever they say can be used against them in a hearing or trial if the negotiations fail
purposes of plea negotiations
-saves the courts costs, time and resources- if a plea neg. is succesful, a trial can be avoided/ ended more efficiently
-provides certainty of outcome- removes potential for acquittal but charges still reflect wrongdoing
-avoids further trauma, stress, inconvenience on victims, witnesses and families
when are plea negotiations appropriate
-accused is willing to engage and plead guilty
-strength and evidence of prosecution’s case is not strong
-witnesses are reluctant/unwilling to give ev. at trial which may weaken the prosecutions case
-witnesses and/ or victims will experience adverse consequences
-victim supports the prosecutions actions to a plea neg. as they don’t want to participate in a trial
- the time and expenses involved
when are plea negotiations not appropriate?
-accused has been charged w a/multiple ind. off. and a plea neg. would not lead to justice since it will likely reduce the severity of the sanction
strengths of plea negotiations
-plea neg. allows crim matters to be determined promptly
-victims, witnesses and families are saved from trauma, stress, inconvenience (prevents secondary victimization)
-plea negotiations provide sub. benefits to community by saving costs and resources
-prosecution will consult w victims and may take their views into consideration when deciding whether to negotiate
-plea neg. ensures a sense of certainty
weaknesses of plea negotiations
-negotiations do not need to be disclosed and can be held privately
-nogotiation process may be seen as the proscutor avoiding the need to prove beyond reasonable doubt (some ppl argue that an innocent person may not enter into negotiations)
-victims don’t get a final say in whether negotiations occur
-a self-represented person may feel pressure to accept a plea even if evidence is not strong (strong safeguards are in place)
-there may be a failure to engage early on in a case to try to resolve the charges (costs and resources)
