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Legal Studies (year 12) > U3 AOS1 > Flashcards

U3 AOS1 Flashcards

1
Q

What are the Principles of Justice

A

Fairness, Equality and Access

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2
Q

Define and give examples of the principle of fairness

A

All people can participate in the justice system and its processes should be impartial and open
- Unbiased court proceedings
- Fair trial
- Entitled to legal representation
- Strict rules of evidence and procedure

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3
Q

Define and give examples of the principle of equality

A

Uniform treatement of all individuals in the justie system, unless same treatement causes disadvantage, in which case adequate measures should be implemented to resolve disadvantage
- Government is more powerful individuals, so accused has rights such as silence, burden of proof on prosecution, high threshold for proof, etc
- Sentencing guidelines

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4
Q

Define and give examples for the principle of access

A

All people should be able to engage with the justice system and its processes on an informed basis
- “Not knowing the law” isn’t an excuse in a crime
- Bodies publish informaiton about the law to try and close knowledge gap
- Victoria legal aid
- Court services provide translators

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5
Q

Define statue law

A

The body of law that comprises laws made by Parliament (aka legislation)

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6
Q

Define Social cohesion

A

The presence of strong relationships and bonds that unite society and encourage cooperation, with the absense of war and conflict

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7
Q

Define a judge

A

The independant authrity who presides over a trial, ensuring fairness by overseeing all evidence and personnel

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8
Q

Define a magistrate

A

The independant authority who presides over the Magistrates’ Court for less serious matters

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9
Q

Define Common Law

A

The body of law derived from judicial reasoning and decision in past cases

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10
Q

Define Questions of Law

A

An issue of law that is resolved by a judge, often concerning the intepretation and application of legal principles or legislation

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11
Q

Define Criminal Law

A

Laws that establish and deal with behaviours that harm others, and defines the legal consequences an offender can receive

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12
Q

What are the features of criminal law (4 things)

A

Parties -> Prosecution, accused
Burden of proof -> prosecution
Standard of Proof -> beyond a reasonable doubt
Sanctions -> legal consequences

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13
Q

Whatis the purpose of criminal law

A
  • Protection of society
  • Deterrance of crimes
  • Protecting justice and the rule of law
  • Setting minimum standards of behaviour
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14
Q

What is the rational for the protection of society

A
  • Citizens can live peacefully within their community
  • Reduce danger and chaos
  • Prevent individuals from experiencing harm
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15
Q

What is the rational for the deterrence of crimes

A
  • Discouraging an offender from reoffending or committing similar crimes
  • Imposing criminal sanctions/legal consequences
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16
Q

What is the rational for protecting justice and the rule of law

A
  • Providing justice to the victim of a crime, as well as their friends and family
  • Criminals facing the consequences of their actions
  • Getting justice for wrongly accused people
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17
Q

What is the presumption of innocence

A
  • All accused persons are to be treated as innocent individuals until proven they are guilty beyond reasonable doubt
  • Afforded to all accused persons
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18
Q

Define, explain and give examples of a summary offence (Reference statute)

A
  • Less serious
  • Heard in Magistrates court
  • Sanctions include fines, Community Corrections Orders, or short prison terms
  • Disorderly conduct, driving offences, common assault, etc.
  • Summary Offences Act 1966 (Vic)
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19
Q

Define, explain and give examples of an indictable offence (Reference Statute)

A
  • More serious
  • Heard by judge and jury (judge only trials can occur)
  • Sanctions include large fines, community correction orders or lengthy prision terms
  • Murder, kidnapping, stalking, etc.
  • Crimes Act 1958 (Vic)
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20
Q

What is an indictable offence heard summarily (Reference statute)

A
  • A less serious indictable offence
  • Less costly, court time and resources can be saved
  • Accused doesn’t have to wait for a jury
    To be heard summarily, the indictable offence must:
  • Not punishable by a maximum of 10 years priison
  • Court msut agree
  • Accused must agree
  • Criminal Procedure Act 2009 (Vic)
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21
Q

What are the key principles of the justice system

A
  • Burden of Proof
  • Standard of Proof
  • Presumption of Innocence
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22
Q

Define the burden of proof

A

The responsibility of a party to prove the facts of a case
Held by prosecution unless:
- Accused raises self-defence

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23
Q

Define the standard of proof

A

The degree to which the facts of a case must be proven in court
Beyond a reasonable doubt in criminal cases

24
Q

Define Beyond a reasonable doubt

A

If there is any logical or reasonable conclusions to suggest the accused wasn’t responsible for the crime, they cannot be found guilty

25
Q

Define the presumption of innocence (name legislation)

A

The right for all accused to be presumed innocent until it is proven otherwise
Protected under s25 of the Charter of Human Rights and Responsibilities Act (CHRRA) 2006 (Vic)

26
Q

List the features and principles that hold up the presumption of innocence

A
  • Right to silence -> no obligation to answer questions
  • Right to apply for bail -> can only be denied if the accused is a threat to the community/ other reasonable grounds
  • Right to appeal a case -> if accused believes they were wrongly convicted
  • Prior convictions cannot be revealed until sentencing -> jury cannot be prejudiced against accused
27
Q

What are the rights of the accused

A
  • Right to be tried wihtout unreasonable delay
  • Right to silence
  • Right to trial by jury
28
Q

Define the Right to be tried without unreasonable delay (name legislation)

A

Ensures that an accused (right belongs to the accused - not prosecution) has their case heard within a timely fashion
(protected by s21(5) of CHRRA 2006 Victoria)

29
Q

Give the factors that decides whether a delay on a case is reasonable or not and name a case this was found in

A

R v Upton (2005 - ACT SupCourt) found relevant factors to determine the ‘unreasonableness’ of a delay:
- Length of the delay
- Number of offenses committed
- Complexity of the case
- Reasons for the delay

30
Q

What is the rationale for ensuring a timely trial (4 reasons)

A
  • Witnesses memories may fade - could cause unreliable evidence/testimony to be given - unfair
    • Upcoming trial can cause immense stress on accused, victims and families - unknown outcome of the case
    • Media attention makes it hard to find an unbiased jury - many will have formed their own opinions if had time to hear about the case through the media
      • Increased legal costs for the accused - may have to hire a lawyer for entire period before trial
31
Q

How does the right to be tried without unreasonable delay uphold fairnes

A

As delays may impact the reliability of evidence, due to lost or forgotten facts, minimising delays ensures a just (fair) outcome to a case

32
Q

Define the right to silence (name legislation)

A

Ensures the presumption of innocence is upheld as an accused person’s choice to not speak during questioning/in court can’t be viewed as a sign of guilt
(protected by s89 of the Evidence Act 2008 (Vic)) (was originally common law, meaning it was created by the courts)

33
Q

When can the right to silence be exercised

A
  • Being confronted by law enforcement when being arrested/accused of an offence
    - In a court of law, meaning an accused can be silent instead of defending themselves
34
Q

What does the Jury Directions Act 2015 allow an accused’s lawyer to do in relation to the right to silence

A

An accused’s lawyer can ask the judge to tell a jury that:
- Failure of an accused to give evidence isn’t an admission of guilt
- Failure of an accused to call witnesses cannot be used as evidence against the accused

However, Taylow-Joycey v R (2021 - NSW SupCourt) sets the president that if the accused’s legal representation don’t employ the Jury Directions Act, an appeal cannot be made arguing that the jury didn’t know about the right to silence

35
Q

What is the exception to the right to silence

A

Must provide name, address and driver’s license (if pulled over when driving)

36
Q

What is the rationale for the right to silence

A
  • The burden of proof is on the prosecution - the accused my remain silent is they believe the prosecution doesn’t have a strong enough case to prove their guilt beyond a reasonable doubt
    • The stress of being questioned may mean the accused says something they didn’t mean to, or may regret - these statements could be used against them
    • Protection from an invasion of privacy and liberty - can keep certain information to themselves
      • Reduces power imbalance - stops accused from being unlawfully coerced into admitting details of a crime
37
Q

Define the right to trial by jury (name legislation) and who it applies to

A

Ensures accused can be tried by unbiased members of the community who have been randomly selected from the electoral roll
Only applies to people accused of indictable offences who plead not guilty
(upheld by the Criminal Procedure Act 2009 (Vic))

38
Q

What is the rationale for the right to trial by jury

A
  • Impartial and unbiased decision maker - no prior knowledge and no connections about the case, represent a cross-section of the community
    • Lawyers will use clear language instead of legal jargon - all parties, including jury, accused and victim can understand the proceedings
    • (Almost) all cases need a unanimous decision - upholds guilt beyond a reasonable doubt, and prevents wrongfully accused individuals from going to prison
      • Jurors are a better representation of the community than a judge - mixed socioeconomic status, age, ethnicity, occupation and experience means minorities are less likely to be targeted
39
Q

What are the rights of victims

A
  • Right to give evidence via alternative arrangements
  • Right to be informed about the proceedings
  • Right to be informed about the likeley release date of the offender
40
Q

Define the right to give evidence via alternative arragements (name legislation)

A

An entitlement for victims and witnesses of certain crimes in Victoria to give evidence in court in a non-standard way that aims to be less traumatic for the victim
(protected in the Criminal Procedure Act 2009 (Vic) including in s360)

41
Q

Name the crimes that the right to give evidence via alternative arragements applies to

A
  • Sexual offences
    • Family violence offences
    • Summary offences involving the use of obscene or indecent language
      • Summary offences involving sexual exposure
42
Q

The right to give evidence via alternative arrangements reduces chance of what

A

Secondary victimisation - when a victim suffers further harm through the negative experiences of the criminal justice system

43
Q

What are examples of alternative arrangements

A
  • Giving evidence by closed-circuit television - no need to physically face the accused in a courtroom/risk contact with the accused
    • Using a screen to hide the accused from the witness - no need to see the accused while they are in the courtroom
    • Allowing an emotional support person - witness can draw strength from the proximity of their support person
    • Closing the court to everyone except the necessary people while giving evidence - less intimidation for the witness
      • Requiring legal practitioners to wear regular clothes/stay seated during examination - less intimidation for witness
44
Q

What is the rationale for the right to give evidence using alternative arragements

A
  • Less traumatic for victims
    • Improves witness’s willingness to testify, upholding the presumption of innocence
      • Less likely to feel intimidated by accused, and able to give reliable evidence
45
Q

Define the right to be informed about the proceedings (name legislation)

A

An entitlement whereby victims can be provided with information about the case they are involved in, subject to certain limitations
(protected by the Victims’ Charter Act 2006 (Vic))

46
Q

What are the limitations for the right to be informed about the proceedings

A
  • Disclosing information may jeopardise an investigation
    - Disclosing information may adversely affect any other proceeding
47
Q

What information are victims entitled to under the right to be informed about the proceedings

A

Victims are entitled to information about:
- The offences the accused has been charged with - whether any charges are withdrawn or changed and why
- Key developments in the case - whether bail has been granted, time and date of trial, whether appeal has been lodged/granted
- Outcomes of trial/appeal - guilty/not guilty verdict, any sanctions imposed by the court

48
Q

What is the rationale for the right to the informed about the proceedings

A

Rationale for the right to be informed about the proceedings:
- Victims often have a strong desire to observe the provision of justice if the accused is found guilty
- Uncertainty is eliminated, which can minimise the risk of secondary victimisation

49
Q

Define the right to be infomred of the likely release date of the offender (name legislation)

A

Victims can apply to be registered on the Victims Register and will be informed about the likely release date of an offender who has been imprisoned
(protected by s17 of the Victims Charter Act 2006 (Vic))

50
Q

What information is on the Victims Register (6 things)

A
  • To have information about a relevant prisoner or offender
    • To know whether an offender applies for parole, and have a say on parole conditions for the offender
    • To know the length of the offender’s sentence and any changes to the sentence
    • To know the earliest possible release date
    • To know if the offender is on parole
      • To know an offenders death or escape from prison
51
Q

Who is eligable to be on the Victims Register (name legislation)

A

Only victims and families of victims of ‘criminal acts of violence’ (as defined in s30A(1) of the Corrections Act 1986 (Vic)) are allowed on the register

52
Q

What is the rationale for the right to be infomred of the likely release date of the offender

A
  • Victims of violent crimes may still fear for their safety once the offender is released - knowing the offender is still in prison can remove uncertainty
    • Victims can take precautions to prevent an offender from contacting them - e.g. Intervention (restraining) orders
      • Victims have the right to submit to the Adult Parole board how releasing an offender will affect them - this will be considered when deciding to grant parole or not
53
Q

What is bail

A

Released back into the community, pending trial, including an undertaking (either your own promise or a family members surety), to return to court on a particular day. Conditions can be attached to bail, for example a surety, forfeiting your passport, etc.

54
Q

What is surety

A

Payment from a family member/spouse to ensure that an accused comes back to court. It’s given back once the accused comes back to court

55
Q

What is remand

A

Depriving someone of their liberty until trial (locking them up)

56
Q

What is parole

A

Allowing a prisoner to leave prision early due to good behaviour

Legal Studies (year 12) (4 decks)

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