U3 AOS1 Flashcards
what are the purposes of the criminal justice system?
- to determine the guilt of accused people
- to appropriately sanction offenders
what are the key principles of the criminal justice system?
- burden of proof
- standard of proof
- presumption of innocence
what is the burden of proof and who does it lie on usually in a crim case?
the responsibility to prove the facts of a case (lies on the prosecution usually in a crim case)
what is the standard of proof and to what standard is it in a crim case?
the strength of evidence needed to prove a case (beyond a reasonable doubt in a crim case)
what is the presumption of innocence?
the principle that all accused people should be treated as though they have not committed the crime they are charged with until they have been proven guilty
what are the principles of justice?
access equality and fairness
what is fairness?
that all people should be able to participate in the legal system, and its processes should be impartial and open
what are some examples of participation in the legal system?
- opp. to prepare a defence
- interpreters given
what are some examples of impartiality in the legal system?
- jury decides indictable offence cases
- judges + magistrates have no biases
what are some example of openness in the legal system?
- case details such as name of person being tried, date, and time for attendance are given out to the public
what is equality?
that all people should be treated the same by the legal system, and in the case that the same treatment results in disparity and disadvantage, measures should be put in place to avoid this disparity
what is the same treatment?
one size fits all approach
what is different treatment?
equitable treatment, some people being given more support than others so that they can have equal opportunities as others and not be disadvantaged
what is access?
that all people should be able to engage with the legal system and its processes on an informed basis
what is engagement?
people uing the legal system to achieve justice (e.g. engaging people through the use of interpreters so access can be achieved for all)
what is an informed basis?
when a person is informed of the processes and steps undertaken by the courts, as well as their own legal rights in a case
what are the features of a summary offence?
- found in summary offences act
- tried in the magistrates court by a magistrate
- no jury
- final trial called a hearing
- minor offences
what are the features of an indictable offence?
- found in the crimes act
- tried in the county or supreme court by a judge and a jury
- final trial called a trial
- more serious offences
what are the 3 rights of an accused and how are they protected?
- the right to silence (protected in statute law)
- the right to be tried without unreasonable delay (protected by the human rights charter)
- the right to be tried by a jury (protected by statute law + the aus constitution)
what are the features of the right to silence?
- applies all throughout case
- guilt cannot be decided due to a lack of the accused speaking
- upholds fairness by ensuring accuseds’ cannot give evidence against themselves
what are the features of the right to be tried without unreasonable delay?
- without discrimination
- upholds fairness (participation) + access bc it stops innocent people from being held in custody for too long
- unreasonable delay = subjective definition
what are the features of the right to be tried by a jury?
- for indictable offences (commonwealth and state)
- jury upholds fairness (impartiality)
- can elect not to be tried by a jury (indictable offences heard summarily)
what are the 3 rights of a victim and how are they protected?
- the right to give evidence using alternative arrangements (statute law)
- the right to be infored about the proceedings (victims charter)
- the right to be informed of the likely release date of the offender (victims charter)
what are the features of the right to give evidence using alternative arrangements?
- for victims of sexual offences, family violence offences, and indecent or threatening language in public offences
- to reduce trauma witnesses may receive from giving evidence in a courtroom
what are some alternative arrangements that can be used to give evidence?
- cctv used so victim can give evidence from a separate place
- screens to remove accused from the witnesses line of sight
- legal practitioners not dressed formally in robes
- legal practitioners sitting down to question
- support person (approved by court) beside witness
what are the features of the right to be informed about the proceedings?
- victims are informed about the date/time/details of the trial
- informed about the offences that the offender has been charged with
- informed if the offender makes any appeals
what are the features of the right to be informed of the likely release date of the offender?
- victims informed if offender escapes from prison
- informed if offender is being given parole
- gives victims a chance to give a victim impact statement to state whether or not they think the offender should be let out on parole
- so that they can prepare themselves mentally and physically for the offender being free in society
what is the role of vla?
to provide free legal assistence to both accused people and victims in the community, prioritising those who need it most
what assistance can vla provide to people accused of committing crimes?
- free legal info
- free legal advice (help before court service)
- duty lawyers
- grants of legal assistance
what are the features of free legal info provided by vla?
- online resources on vla website
- upholds principle of access
- available to everyone
what are the features of free legal advice provided by vla?
- can be in-person, over the phone, or on vla website
- can give advice about a person’s rights, details of their case, and court processes
- income dependent
what are the features of the help before court service?
- applies to a person who is charged with a summary offence being tried in the magistrates court
- if their court date is more than 6 days away, vla can provie them with a lawyer to help them prepare for their trial
- can arrange for a cuty lawyer to help them prapre/represent them on the day
what are the features of the duty lawyer service?
- a lawyer who is stationed in the magistrates court to represent any cases that are being tried on that day
- need an income test in order to determine if they are eligible for the duty lawyer service (takes their income into account)
what are the features of a grant of legal assistance provied by vla?
- a lump sum of money given to an accused for them to seek out legal representation
- can provide them with a lawyer from vla’s board or payment for a private lawyer
- requires the means test (takes into account income, expenses, and assets)
what assistance can vla provide to victims of crimes?
- free legal info
- free legal advice
- duty lawyer services
- grants of legal assistance
what are the strengths of vla?
- interpreter services/legal info on wesbsite in several different languages
- legal info is free
- prioritises low income/vulnerable people
- no restrictions on living area/dispute type (other than only summary offences)
what are the weaknesses of vla?
- depends on funding (if funding drops, they can help less people)
- lawyers usually aren’t the most experienced
- only represents summary offences
- can’t help some people due to eligibility criteria, people who are vulnerable but not as vulnerable as others
what is the role of clcs?
to provide free legal assistance to both accused people and victims in the community, and to educate the community about the legal system
how can clcs assist accused people?
- free legal info
- free legal advice and assistance
- ongoing casework
what are the features of free legal info provided by clcs?
- for everyone
- found online or in person (pamphlets, etc.)
what are the features of free legal advice provided by clcs?
- no income test
- e.g. writing short lettes/completing forms
what are the features of ongoing casework provided by clcs?
- have their own eligibility requirements
- some clcs can represent accused people in court
- gives them assistance to prepare for their court date
how can clcs assist victims of crime?
- free legal info
- free legal advice
- duty lawyer services
- ongoing casework
what are the features of duty lawyer services for victims of crime provided by clcs?
- for victims seeking violence or intervention orders
- stationed in magistrates court on the day of the trial
what are the 2 types of clcs?
- generalist (based on geographical area)
- specialist (based on a certain area of law)
what are the strengths of clcs?
- have specialist courts for specific areas of law/groups of people (e.g. youthlaw)
- legal info is free
- prioritise people who are the most vulnerable
- educates community
- interpreter services/different languages
what are the weaknesses of clcs?
- turn people away if not in geographical area or not specific type of law that they deal with
- not much funding, can turn people away
- do not assist people charged with indictable offences
what are plea negotiations?
pre-trial/hearing discussions between the prosecution and the accused
what are the possible outcomes of plea negotiations?
- accused pleass guilty to fewer charges
- accused pleads guilty to a charge, but an agreement is made about the facts the plea is based on
- accused pleads guilty to a lesser charge
what does a without prejudice basis mean in plea negotiations?
offers made by either party during plea negotiations cannot be used against them in the case that the negotiations are unsuccessful
how can plea negotiations take place?
over the phone, through email, through letters, face to face
when do plea negotiations generally occur?
when there are multiple charges
at what stage of a case can plea negotiations happen?
at any stage
what are the purposes of plea negotiations?
- to enure the certainty of the outcome of the case
- to save on costs, time, and resources
- to achieve a prompt resolution without the stress, trauma, or inconvenience of a criminal trial/hearing
why is it important for the prosecution to ensure the certainty of the outcome of the case?
reduces the chance of the accused being acquitted
what is a benefit to the accused of plea negotiations?
they may receive a lesser/reduced sentence (depending on sentencing factors and how early the guilty plea came)
what factors are considered when determining the appropriateness of plea negotiations?
- whether the accused is willing to cooperate in the investigation
- the strength of the evidence/the case on both sides
- whther the accused is ready and willing to pleas guilty
- if the accused is represented/self-representing
- if witnesses are reluctant/unable to give evidence
- the possible negative consequences of a full trial/hearing
- time + expense of trial/running the case
- views of the victim
why would the prosecution be more likely to enter negotiations with a represented accused?
because they are negotiating with someone who better understands the legal system and how plea negotiations work
what factors are considered by the accused before entering plea negotiations?
- time + expense of trial
- possible long-term consequences of pleading guilty
what are the strengths of plea negotiations and what principles of justice do they achieve?
- prompt determination of criminal cases (ACCESS)
- saves trauma, inconvenience, and stress of trial process for victims, witnesses, and their families (FAIRNESS + EQUALITY)
- prosecution will consult with victims/take their views into account (ACCESS + FAIRNESS)
- benefits the community by saving the cost of a full trial/hearing (ACCESS)
- ensures certainty of outcome for parties (EQUALITY + FAIRNESS)
how do plea negotiations assist the justice system?
it is likely the justice system would not be able to cope with the influx of cases going to trial without plea negotiations
what are the weaknesses of plea negotiations and what principles of justice do they go against?
- negotiations are held privately and don’t need to be disclosed (FAIRNESS)
- going through the negotiation process could be an indication that the prosecution is trying to avoid proving the case beyond a reasonable doubt (EQUALITY + FAIRNESS)
- victims don’t have a final say (ACCESS + EQUALITY)
- self-represented accuseds may feel pressured into accepting a deal even if the evidence isnt strong enough (FAIRNESS + EQUALITY + ACCESS)
- one or both of the parties could fail to engage early on in a case to reduce charges (ACCESS + FAIRNESS)
what is jurisdiction?
the power/authority of a court to hear and decide criminal cases
what are the 2 types of jurisdiction?
original jurisdiction and appellate jurisdiction
what is original jurisdiction?
the power of the court to hear a case for the first time
what is appellate jurisdiction?
the power of the court to hear a case in which a decision is being reviewed or challenged (being appealed in a higher court)
which court hears the most severe indictable offences in australia?
the high court of australia
what is the order of the victorian court hierarchy from highest court to lowest court?
supreme court of victoria (court of appeal) -> supreme court of victoria (trial division) -> county court of victoria -> magistrates court of victoria
what are 2 specialist courts in victoria?
the coroners court anf the childrens court
what are the 2 reasons/strengths of the court hierarchy and what principles of justice do they achieve?
- specialisation (ACCESS)
- appeals (FAIRNESS + EQUALITY + ACCESS)
what is specialisation in the court hierarchy?
when courts develop their own areas of expertise
what does the supreme court of appeal specialise in?
determining criminal appeals in indictable offences
what does the supreme court trial division secialise in?
hearing the most serious indictable offences
what does the county court specialise in?
particular indictable offences
what does the magistrates court specialise in?
summary offence cases and committal proceedings
what does the childrens court specialise in?
cases where the accused is a young person
what does the coroners court specialise in?
investigating suspicious deaths and fires
what are the parties in an appeal called?
- party that brings forward the appeal = the appellant
- party who is responding to the appeal = respondent
what does the appellant need to make an appeal?
the consent of the court hearing the appeal
why are appeals important?
because they uphold fairness by ensuring that if a trial has been conducted unfairly it can be rectified
what are the grounds for an appeal?
- can appeal on a question of law (e.g. some law was not followed when determining the case)
- can appeal on a conviction (if you are an offender)
- can appeal on severity or leniency (prosecution will appeal on leniency, offender will appeal on severity)
what can the prosecution not appeal?
an acquittal
what is the original jurisdiction of the magistrates court?
- summary offences
- indictable offences heard summarily
- committal proceedings
- bail applications
- warrant applications
what is the appellate jurisdiction of the magistrates court?
none
what is the original jurisdiction of the county court?
- indictable offences NOT including murder, attempted murder, certain conspiracies, or corporate offences
what is the appellate jurisdiction of the county court?
- appeals from the magistrates court on a conviction or sentence
what is the original jurisdiction of the supreme court trial division?
- msot serious indictable offences INCLUDING murder, attempted murder, certain conspiracies, and coroporate offences
what is the appellate jurisdiction of the supreme court trial division?
- appeals from the magistrates court on a point of law/question of law
what is the original jurisdiction of the supreme court of appeal
none
what is the appellate jurisdiction of the supreme court of appeal?
- appeals from the county court
- appeals from the supreme court trial division
- appeals from the magistrates court in cases where the chief magistrate has decided the case
what are the weaknesses of the court hierarchy and what principles of justice do they go against?
- many different courts can be confusing for those who don’t understand the legal system (ACCESS + EQUALITY)
- there is no automatic right to appeal, the offenders must first establish grounds for appeal, which can be especially difficult if self-representing (FAIRNESS + ACCESS + EQUALITY)
when do criminal cases go to trial?
when the accused continues to plead not guilty
who are the key personnel in a criminal case?
- judge/magistrate
- jury
- parties
what are the roles of the judge/the magistrate?
- act impartially
- manage the trial or hearing
- decide the outcome of the case (only for a magistrate)
- sentence an offender
what is apprehended bias?
if a fair minded observer has a reasonable belief that a judge or magistrate might be biased
what may happen in the case of apprehended bias?
a party may argue that the judge/magistrate should remove themself from having any involvement in the case
what does managing the trial/hearing involve?
- controlling the case (controlling witnesses, controlling the order of events, working with legal practitioners to conduct the trial, asking occassional questions of a witness, recalling a witnesss for a matter to be clarified, calling a new witness with the permission of both sides)
- making decisions through the course of the trial (e.g. whether evidence is admissable or not)
- adjusting the trial processes if necessary to ensure a party doesn’t suffer disparity
what are some of the rules regarding whether evidence is admissable or not?
- evidence must be relevant to issues in dispute
- hearsay evidence is not admissable (with some exceptions)
- evidence of an opinion is not admissable (with some exceptions)
is the judge/magistrate an active participant in the trial?
no
what does the magistrate do in order to decide the guilt of an accused?
listens to the facts/the case presented by both sides, then makes a decision based on facts and the law
why doesn’t the judge decide guilt?
because in a criminal case with a judge and a jury, the jury decides guilt
what does the judge do in overseeing the outcome of the case?
- ensures that the jury understands their role + sums up the case for the jury (explains law involves, identifies evidence that will help them come to a verdict, refers to how parties have put their cases, explains legal definitions/principles, etc.)
- gives directions to the jury to ensure a fair trial (e.g. telling them that the accused does not have to give evidence but this cannot be taken as an admission of guilt)
- sometimes may need to decide whether or not to accept a majority verdict (11/12 jurors instead of 12/12)
what happens once an accused has been found guilty?
the case is set down for a plea hearing
what occurs at a plea hearing?
both parties make submissions about sentencing (e.g. aggravating and mitigating factors)
when does sentencing occur?
on the same day as the plea hearing or at a later date
what does the judge/magistrate do at a plea hearing?
hear from both parties, can also hear from victims about the impact the offence had on them (through victim impact statements)
what is a victim impact statement?
a statement filed with the court by a victim that is considered in centencing the offender, outlining the injury, loss, or damage that the victim suffered
what is the purpose of a plea hearing?
to ensure procedural fairness by allowing both parties to make appropriate submissions
what can happen if a plea hearing does not happen/the judge or magistrate doesn’t hear from both parties/the judge or magistrate doesn’t consider victim impact statements?
there may be grounds for an appeal
what are the strengths of the judge/magistrate and their roles, and what principles of justice do they uphold?
- an impartial umpire (doesn’t overly interfere in a trial/help either party), no party has an advantage/disadvantage (FAIRNESS + EQUALITY)
- judge/magistrate manages the hearing/trial process (explains rules of evidence/ensures procedures are followed), both parties should have an opportunity to present their cases (FAIRNESS + EQUALITY + ACCESS)
- judge/magistrate can assist self-represented accuseds, can adjust trial to accomodate more vulnerable people, e.g. young people, those with disabilities , those with mental health conditions, etc. (EQUALITY + ACCESS)
what are the weaknesses of the judge/magistrate and their roles, and what principles of justice do they go against?
- judge/magistrate can have actual or apprehended bias, which can impact decisions (FAIRNESS)
- lack of diversity in judges and magistrates across aus. (certain groups are underrepresented), can impact the extent that people feel confident/comfortable with the legal system (EQUALITY + ACCESS + FAIRNESS)
- judge/magistrate can’t overly interfere in a case, including giving extra help to self represented people (FAIRNESS + EQUALITY)
what do trials by jury provide opportunities for?
- community participation in the legal system
- the law to be applied according to community standards
when does a trial by jury occur?
- when an accused has pled not guilty to an indictable offence
what is the composition of a criminal jury?
12 randomly selected jurors from the electoral roll
which members of society are unable to be on the jury?
- prisoners
- those who have been convicted of crimes
- lawyers/police officers/anyone involved in the legal system
- those who are excused for a valid reason, e.g. significantly unwell
what are the main/broad roles of the jury?
- to be objective
- to listen to/remember the evidence
- to understand directions/summing up from the judge
- to deliver a verdict
what does the jury being objective involve?
- being unbiased
- bringing an open mind to the task
- putting prejudices/preconceived biases aside to make decisions based on facts of the case
- having no connection with the parties
what does the jury listening to and remembering the evidence involve?
making sense of all evidence given (can be complicated evidence given graudally in the form of questions and answers)
what can jurors do to remember all evidence they hear?
take notes during a trial (while still concentrating on what is happening in the courtroom)
what must the jury not do?
- undertake it’s own investigation about what happened/the case
- conduct any research on the case
- make any enquiries about trial matters
- use the internet to search for information
what can occur if the jury is misconducted?
- the jury can be discharged
- the jury can have penalties put upon them
- it can give rise to a mistrial (the trial must happen again from the start)
what are jury directions?
instructions to the jury given by the judge about issues/points of law
what does the judge say to the jury at the conclusion of a criminal trial?
- gives directions
- sums up case
what must the jury do when the judge gives them directions/sums up the case?
listen, and possibly ask for explanation on any legal points they do not understand
what is involved when the jury is delivering a verdict?
- deliberations by the jury, durnig which they must form an opinion about which party’s arguments they believe
- deciding the guilt of an accused in a criminal case
what should jury deliberations be?
- undertaken freely
- without pressure from another juror to reach a certain verdict
- always confidential
- generally not admissable as evidence in court/not allowed to be disclosed
why must jury deliberations be confidential?
so that jurors are free to be candid about their views
what must the jury aim for at the conclusion of their deliberations?
a unanimous verdict (12/12 jurors agree)
what can the court accept if the jurors can’t reach a unanimous verdict?
a majority verdict (11/12 jurors agree), but only in some cases (cases that don’t involve murder, treason, or certain drug offences)
what are the strengths of the roles of the jury, and what principles of justice do they uphold?
- jurors are randomly picked and have no connection to parties (make their decisions based on facts, not biases) (FAIRNESS)
- allows community participation in the justice system (ACCESS + FAIRNESS)
- collective decision making reduces the possibility of bias, as personal or subconscious biases can be identified in deliberations (EQUALITY + FAIRNESS)
- jury is a cross-section of the community, represents a diverse group of people, therefore decision reflects community views and values (EQUALITY + ACCESS)
what are the weaknesses of the roles of the jury, and how do they go against the principles of justice?
- jury members may have unconscious biases/prejudices, and there is no way of knowing if their decisions are based on these, as they don’t give reasoning for their decisions and deliberations are confidential (FAIRNESS)
- criminal trials are complex, and the jury may not understand legal principles, evidence, or directions given by the judge (FAIRNESS + ACCESS)
- jury trials make for delays, as rules, evidence, and processes must be explained + juries need deliberation time (ACCESS)
- several groups of people (either ineligible, excused, or disqualified) cannot participate in the jury, therefore a large section of the community could be underrepresented (ACCESS + EQUALITY)
what is ‘party control’
the ability for each party to control how the case will be run
what must happen in party control?
parties must comply with court’s rules, directions, and orders, and any laws that impose duty or obligations on the parties
what are the roles of the prosecution?
- to disclose information to the accused
- to participate in the trial/hearing
- to make submissions about sentencing
what must the prosecution do in disclosing information to the accused?
- disclose all relevant matters (e.g. evidence that will be used against them, including statements of witnesses, and any other material that may assist the accused’s case)
- disclose any relevant convictions of prosecution witnesses (may give accused cross-examination opportunity)
what is an ongoing disclosure obligation?
applies to the prosecution, means that even after the conclusion of the case, regardless of the outcome, the prosecution still must disclose all relevant matters
what are the prosecution’s roles in participating in the trial or hearing?
prosecutor must present the case
- opening address (outlines prosecution case so jury/magistrate can understand issues + evidence that will be presented)
- prsent evidence that supports the case (e.g. calling + examining witnesses (lay witnesses + expert witnesses)
- cross-examing witnesses called by the accused
- closing address (after close of all evidence, must limit o evidence presented, must try not to use comments that evoke emotion + not convey personal opinions)
when can opening and closing addresses not be given?
in summary hearings, unless leave is granted
what must the prosecution do when making submissions about sentencing?
- if accused pleads guilty/is found guilty = plea hearing
- prosecution can inform court of laws that apply + anything about offence or offender that is relevant to sentencing
- assist court in determining the sentence (should not make submissions about sentencing range)
what are the roles of the accused?
- participate in the trial/hearing
- make submissions about sentencing
who will perform the roles of the accused?
- if they are self-represented, the accused themself
- if they have a legal practitioner, the legal practitioner
what is the difference between the roles of the prosecution and the roles of the accused?
accused does not have the burden of proof and can choose to remain silent
what is involved in participating in the hearing or trial for the accused?
- can fully participate or stay silent
- legal practitioners may (if they choose to prepare a defence):
- present an opening address (similar to prosecutor, will summarise evidence + not include irrelevant information)
- prsent evidence that supports their case (calling witnesses, accused can also give evidence)
- cross-examining witnesses called by prosecution
- making a closing address after prosecution (limited to evidence)
what is involved in the accused making submissions about sentencing?
- offender or their legal practitioner will try to obtain leat possible sentence available
- will do this by relying on mitigating factors
- must not mislead the court
what are the strengths of the roles of the parties, and how do they uphold the principles of justice?
- prosecutor has special obligations to disclose all relevant matters to accused, therefore cannot seek to change witnesses without notice, and must give prior notice for all evidence (FAIRNESS, EQUALITY, ACCESS)
- both parties have the opportunity to present their cases, including opening/closing addresses + examining/cross-examining witnesses (EQUALITY + ACCESS)
- accused has no obligation to present evidence/do or say anything in the trial (FAIRNESS + EQUALITY)
what are the weaknesses of the roles of the parties and how do they go against the principles of justice?
- Vic. Law Reform Commission (VLRC) notes that adequate disclosure is an issue in vic, e.g. police sometimes wait to see what defence requests rather than providing disclosure upfront (FAIRNESS + ACCESS + EQUALITY)
- processes involved are complex and difficult to understand, especially for self-represented accused people (ACCESS + EQUALITY + FAIRNESS)
- ‘party control’ + the right to silence = the accused doesn’t have to say or do anything, which can be unjust, especially for victims and their families, if the accused is the only witness (FAIRNESS + EQUALITY)
what are the reasons that an accused should have legal representation?
- a self-represented accused lacks the skills + experience to navigate the justice system + evidence (e.g. navigating plea negotiations + trial processes + examination of witnesses)
- self-represented accused = not objective (difficult for them to make the right decisions, overly invested/emotional about the outcome, therefore can’t assess risks + facts of case)
- accused doesn’t have to directly question witnesses/victims (could retraumatise them in a serious/difficult case)
- courts + judges can assist self-represented accuseds to a certain extent, e.g. helping them to understand processes, but can’t advocate for them
why is there a ‘gap’ in legal representation?
because not everyone can afford legal representation, and VLA + CLCs cannot assist everyone, therefore there is a ‘gap’ where some people have to represent themselves
in what cases can the court order adjourn trial and order legal representation and what does this entail?
in certain serious offences, the court can adjourn the trial and order that VLA provides legal representation to the accused
what are the qualifiers of the accused for the court to order legal representation?
the court must be satisified that:
- the accused would not be able to receive a fair trial without legal representation
- the accused cannot afford to pay for their own lawyer
how does the court tell if an accsued is able to afford their own lawyer or not?
the accused has the burden of proof to prove that they cannot afford legal representation
what are the strengths of legal practitioners and what principles of justice do they uphold?
- legal practitioners are experts and can help the accused to navigate the legal system (e.g. assisting and conducting opening and closing addresses) (EQUALITY + FAIRNESS)
- legal practitioners have objectivity (can make decisions without emotion, e.g. whether or not to accept an agreement in a plea deal) (EQUALITY + FAIRNESS)
- legal practitioners avoid delays (self-represented accused slow down the process because they need to be assisted with understanding the court processes) (ACCESS)
what are the weaknesses of legal practitioners and what principles of justice do they go against?
- legal practitioners don’t all have the same level of skill + experience, impacting the quality of their legal services (EQUALITY + FAIRNESS + ACCESS)
- not everyone can afford legal representation, therefore some accuseds must represent themselves despite not having the necessary skills, experience, or objectivity (EQUALITY + FAIRNESS + ACCESS)
- legal representation alone may not be good enough to properly assist the accused, e.g. if they can’t understand english or they suffered trauma, they may need more support (EQUALITY + FAIRNESS +
what are the three most common factors that impact the achievement of the principles of justice in the criminal justice system?
costs, time, and cultural differences
what is the main cost that is likely to occur in the legal system?
costs of legal representation
why does an accused need legal representation?
to navigate the justice system
why does a victim need legal representation?
to assist them in learning and achieving their rights, to assist them in contacting investigative and prosecution agencies, and to help them understand processes
what are the options for accused people who cannot afford legal representation?
- can seek legal aid through vla or a clc
- can try to obtain pro bono legal representation from a private practitioner
- can represent themselves
what does pro bono mean?
it is a latin term meaning ‘for the public good’, and is used to describe legal services that are provided for free or at a reduced rate
what is a key measure in place to address costs?
vla and clcs
why are vla and clcs not as effective as they could be?
increased demand for legal representation and a need to manage funding and budgeting means that a large part of the community is not eligible for vla or clcs to assist them
what challenges do self-represented accuseds create for the court and for the parties?
- the accused lacks understanding of the law and its formalities, procedures, evidence, and language
- trials/hearings with self-represented accuseds take longer because the judge or magistrate has to explain things along the way
- self-represented accuseds are often vulnerable (e.g. are homeless, have a disability, are young people, etc.)
how has the county court adapted to the rising numbers of self-represented accuseds?
they have created a dedicated page on their website to provide information for self-represented accuseds
what measures can assist in addressing the burden of costs?
- committal proceedings
- plea negotiations
- vla
- clcs
how can committal proceedings assist with addressing costs?
- used to filter out weak cases
- stops unnecessary trials
- allows an opportunity for the accused to plead guilty
what is a weakness of committal proceedings?
some see them as an ineffective filtering system because the vast majority of cases are committed to trial
how can plea negotiations assist with addressing costs?
- they avoid the need for a trial
- they avoid the costs involved in running a trial (e.g. costs of prosecution, costs of courts, costs of impanelling a jury, etc.)
what is the main way that time affects the criminal justice system?
through trial delays
what tasks are involved in a criminal case that can take up time?
- gathering evidence
- locating + interviewing witnesses
- determining what happened
- determining what charges should be laid against an accused
what are the weaknesses of our justice system involving time?
the justice sytem creates delays because it:
- relies on the prosecution gathering evidence
- has an over-reliance on hard copy documents
- has a need for committal proceedings in otherwise straightforward cases
what measures have been taken to address the burden of delays on the criminal justice system?
- the use of plea negotiations
- the use of temporary judge-alone trials
- investment in digital technology
how do plea negotiations assist in addressing time?
- they can achieve an early guilty plea, avoiding the need for trial
- they allow for early dispute resolution
- they ensure courts are freed up to hear and determine other cases
what cases does the court prioritise to go to trial rather than being settled at plea negotiations?
- cases where the accused is unwilling to cooperate
- cases where it is in the best interest of the public for the case to go to trial
how do judge-alone trials assist with time delays?
they assisted with cases during covid
what were the conditions during covid for a case to become judge-alone?
- the accused had to consent
- the accused had to have obtained legal advice
- the court had to consider it in the interests of justice
how does investment in digital technology assist with time delays in the criminal justice system?
- allows for remote hearings where people can join the hearing via a video link
- magistrate’s court tech program = online magistrate’s court
what are some cultural difficulties when it comes to interacting with the justice system?
people who’s first language isn’t english or who are first nations people may:
- have a lack of knowledge about the legal system
- have a lack of udnerstanding about the english language
- the legal system may fail to account for their differences
- there may be cultural misunderstandings
what are some difficulties faced by first nations people in the legal system?
- language barriers (subtle language differences make it more difficult to understand)
- direct questioning (question and answer method = inappropriate, first nations people may be seen as evasive or avoidant rather than polite)
- body language (first nations people may appear unreliable or uninterested due to their body language)
- cultural taboos (may be taboo to speak of certain things, making them unable to disclose information to the court)
- lack of understanding of court processes (may not understand why they have to say the same thing over and over again)
what are some reasons why first nations people are vulnerable?
- overrepresented in the justice system
- vulnerable due to social and economic disadvantage
- suffering from intergenerational trauma
what difficulties are faced by those who’s first language isn’t english in the legal system?
language barrier = affects their ability to understand court documents and processes or their rights, putting both accuseds and victims at a disadvantage
what measure has been put in place to address cultural differences in the legal system?
the koori court
what is the koori court?
a sentencing court for first nations people
what are the goals of the koori court?
- to respect first nations people’s culture
- to encourage the participation of the accused
- to reduce the overrepresentation of accused people in the legal system
what are some features of koori court?
- informal processes
- conducted in a culturally appropriate way
- oval table
- everyone speaks in normal english, without legal terminology
- the court is smoked (traditionally cleansed)
- the court is descorated with first nations art and artefacts)
what makes an offender eligible for koori court?
- they are a first nations person
- they have pled guilty
- they live in or have been charged within the relevant koori court area
what is a weakness of the koori court?
it is not available to all people as it is only used for sentencing, and doesn’t hear sentences for all offences
what other measures are in place to address the impact of cultural differences?
- info from vla and clcs being provided in a different language
- provision of free interpreters to accused people (summary offences = magistrates court will pay, indictable offences = prosecution will pay)
what is a sanction?
a penalty imposed by a court on a person guilty of a criminal offence
what are the 3 types of sanctions?
- imprisonment
- fines
- CCOs (community corrections orders)
what is the principle of parsimony?
the principle that the judge or magistrate should not impose a sanction that is more severe than necessary to achieve its purposes
what are the purposes of sanctions?
- rehabilitation
- punishment
- deterrence
- denunciation
- protection
what is the purpose of rehabilitation?
to reform an offender in order to prevent them from committing offences in the future
what are two ways that rehabilitation can be achieved through sanctions?
- through a CCO with rehabilitation conditions
- through a rehabilitation program within prison
what factors affect the ability for a person to be rehabilitated in prison?
- depends on the programs available
- depends on the offender
- depends on their sentence length
what is a weakness of rehabilitation through prison programs?
that prisons can promote reoffending and reinforce criminal behaviour
what must be emonstrated by the offender for rehab to be relevant?
remorse
what are some ways that the offender can demonstrate remorse?
- through an early guilty plea
- through cooperating with the police
- through taking active steps to address their behaviour
when is punishment used as a purpose of a sanction?
if the offender has done something unacceptable to society and must be penalised so that justice is achieved for the victim and the community
what does punishment avoid?
avoids the need for victims of crime to take matters into their own hands
how severe must a punishment be?
must be proportionate to the offence committed (not to lenient or too harsh, can give rise to appeal from offender)
in what cases is punishment commonly used as a sanction?
- if the case involved the death of another person
- if the case involved serious injury
- if the case involved culpable or dangerous driving
- if the case involved sex offences
what sanctions achieve punishment?
- imprisonment
- cco (though not to as great an extent)
- fines (though not to as great an extent)
what is the aim of deterrence?
to discourage offenders and others in the community from committing similar offences
what are the 2 types of deterrence?
specific and general deterrence
what is the aim of general deterrence?
to deter and discourage others in the community from committing offences, because they see the consequences
what does the achievement of general deterrence depend on?
depends on if the community knows about the sentence imposed, or if they understand the sentence imposed
what is the aim of specific deterrence?
the court seeks to discourage a particular offender from engaging in future criminal activity
what is an important factor in whether an offender will be specifically deterred and why?
whether the offender has prior convictions or not, because they may be at risk of offending again, and therefore deterrence is a high priority
what are the weaknesses of specific deterrence?
- it may not be significant if the offender is remorseful
- it may not be signifiant if the offender is a first-time offender
- it may not be significant if the offending circumstances are unique
what is the aim of denunciation?
to demonstrate the community’s disapproval of the offender’s actions
in what cases is denunciation usually used?
- cases involving family violence
- cases involving significant violent acts
- offences motivated by prejudice or hatred
what is the aim of protection?
to ensure the community is safe from any further harm that could be caused by the offender
what sanctions can achieve protection?
- imprisonment (physically removes offender from society)
- non-custodial sentence, e.g. cco (can keep offenders busy + use conditions to stop offenders from going certain places)
when may protection be a relevant purpose?
- if the offender refuses to participate in treatment or rehab programs
- is the offender shows no signs of remorse
- if the offender has significant criminal history
what is an indefinite sentence?
a term of imprisonment with no fixed end date, usually given for the most serious offences
when can the court impose an indefinite sentence?
for offenders that have committed serious crimes or are a serious danger to the community
how can a person be released from an indefinite sentence?
only the court can decide
what is a fine?
a sanction that requires the offender to pay an amount of money to the state
what are some features that can come with a fine?
- can come with or without a conviction
- can be imposed as the only sanction, or with multiple
what does the amount of money for a fine depend on?
the maximum penalty that may be imposed for a certain offence (found in the statute regarding that offence)
what are the levels for fines and what do they mean?
level 2 is the highest level
level 12 is the lowest level
each level corresponds to a maximum amount of penalty units
what is the maximum fine for a level 2 crime?
3000 penalty units
what is the maximum fine for a level 12 fine?
1 penalty unit
why are there no level 1 fines?
because level 1 is reserved for the most serious offences (e.g. murder), where a crime is not an apropriate sanction
why are fines expressed in penalty units?
so that the government can change the values of a penalty unit every year without changing all the statutes
what factors are considered when the court is determining the amount for a fine for an offender?
- the financial circumstances of the offender and the burden that the payment of the fine will impose on the offender (only relevant to the amount, not whether or not a fine should be imposed)
- whether any other orders have been made in relation to taking an offender’s property, or orders requiring the offender to make amends or pay compensation
- any loss of/destruction of/damage to property that was suffered by a person as a result of the offence
- the value of any benefit gained by the offender as a result of the offence
what is given preference over a fine for an offender?
any order that requires the offender to restore property/pay compensation to a victim (although a fine can also be imposed)
what are the conditions of a fine if a company is the offender?
the fine imposed can be no greater than 5 times the amount of the maximum fine imposed on a human being
what can happen, in some circumstances, if a company is unable to pay a fine?
in some circumstances, if a company is unable to pay a fine, the court can declare that any person who was a director of the company is liable to pay the fine
what happens if a fine cannot be paid or is not paid?
the court can vary/discharge the fine if the offender’s circumstances substantially change
what are the conditions for a fine to be converted into required community service?
- the circumstances of the offender have to have changed such that they can no longer pay the fine
- the fine cannot be any more than 100 penalty units
what happens if an offender refuses to pay a fine?
- steps may be taken to enforce payment (e.g. warning letters)
- the offender may be ordered to undertake community work (max 500 hours)
- a warrant may be obtained to seize/take property to satisfy the fine payment
- the offender may be imprisoned
what are the conditions surrounding imprisonment for an unpaid fine?
- 1 day for each unpaid penalty unit for max 24 months
- only if appropriate (cannot be ordered if offender has a reasonable excuse to not pay)
what sentencing purposes do fines achieve?
mainly punishment and deterrence (possibly denunciation)
what factors must be considered when assessing the ability of a fine to achieve punishment?
- the financial circumstances of the offender + their ability to pay
- the amount of the fine
- whether the offender is a person or a company
- whether the fine is paid or enforced
what factors must be considered when assessing the ability of a fine to achieve specific deterrence?
- financial circumstances of the offender + their ability to pay
- the amount of the fine
- whether the offender is a person or a company
- whether the fine is paid or enforced
what factors must be considered when assessing the ability of a fine to achieve general deterrence?
- the amount of the fine + the circumstances of people in the community
- the extent to which the sentence is known within the community
what factors must be considered when assessing the ability of a fine to achieve denunciation?
- the nature of the offence + the fine imposed
- whether the fine is enforced or not
what factors must be considered when assessing the ability of a fine to achieve rehabilitation?
could assist in conditioning the offender to avoid similar types of behaviour
what factors must be considered when assessing the ability of a fine to achieve protection?
- long-term protection could be achieved if the offender is deterred from reoffending
- could achieve protection if imposed on a company that is willing to address the reason why they were fined (e.g. fixing an unsafe workplace)
what are the weaknesses of a fine that is too high/too low in achieving its purposes?
too high fine = offender may not pay or may not be able to pay (reduces punishment/deterrence)
too low fine = offender is not punished enough/must pay it too easily (reduces punishment/deterrence and denunciation)
what are the weaknesses of if a company is fined?
the people responsible for the offending of the company may not be punished/deterred as the fine doesn’t affect them
what is a community corrections order?
a cco is a flexible, non-custodial sanction (one that does not involve a prison sentence) that the offender serves in the community, with conditions attached to the order
what are the benefits of a cco?
- they can be tailored to the offender and offending
- they can be used for a range of offences
- they give offenders the opportunity to address their criminal behaviour
- they give offenders the opportunity to undergo treatment and take part in educational, vocational, or personal development programs
- they allow offenders to remain in the community
- they help offenders to avoid the potentially negative impacts of prison
what are the conditions regarding the length of a cco?
- up to 2 years for a single offence in the magistrates court
- up to 5 years for a single offence in any other vic court
what can a cco be combined with?
a fine or max 1 year imprisonment
what are the conditions regarding when a cco and an imprisonment sentence are combined?
the cco will commence after the offender has been released from prison
what are the conditions for a court to impose a cco?
- the offence must be punishable by more than 5 penalty units
- the court must have received a pre-sentence report
- the offender must consent to the cco
- the court must be satisfied that the cco is appropriate for the offender
when can a cco not be imposed?
- for a category 1 offence (most serious offences, incuding murder, various sexual offences, some assault offences, and ome drug offences
- for a category 2 offence except for in certain circumstances (including manslaughter, child homicide, kidnapping, arson causing death, and some drug offences)
what are the circumstances in which a cco can be imposed for a category 2 offence?
- if the offender has a mental impairment
- if the offender has assisted enforcement authorities in an investigation or prosecution
what are the core conditions of a cco?
- offender must not commit another offence punishable by imprisonment during period of order
- offender must report to a specified community corrections centre within 2 working days of the order coming into force
- the offender must report to + receive visits from a community corrections officer
- offender must notify community corrections officer of any change of address/employment within 2 working days after change
- offender must not leave vic without permission
- offender must comply with any directions of community corrections officer
what must the court also impose with a cco?
at least one additional condition
what are some additional conditions that can be added to a cco?
- unpaid community work (cannot exceed 600 hours or 20 hours over a 7-day-period)
- treatment and rehabilitation
- supervision
- non-association (cannot contact/associate with people specified in the order)
- residence restriction or inclusion
- place or area exclusion
- curfew
- alcohol exclusion
- bond (offender pays money as a bond which is forfeited if they refuse to comply with cco)
- judicial monitoring
- electronic monitoring (offender fitted with electronic monitoring device)
- justice plan (for intellectually disabled offenders, directs them to participate in services that are designed to reduce the likelihood of further reoffending)
in what circumstances can the court vary a cco?
- if the offender’s circusmtances materially change, meaning they are unable to comply with any condition
- of the offender no longer consents to the order
- if it is no longer in the interest of the community or the offender for the cco to continue (e.g. if the offender contravenes (breaches) the cco conditions, creating an additional offence)
what can the court do if the conditions necessary to change a cco are met?
- they can impose a different sanction
- they can vary the cco conditions
- they can cancel the cco and make no other orders
what are the most commonly achieved sentencing purposes of a cco?
deterrence, rehabilitation, and denunciation (can also achieve protection and punishment due to flexibility)
what factors must be considered when assessing the ability of a cco to achieve punishment?
- the length of the cco
- the mandatory conditions
- the nature of the additional conditions imposed
- the restriction on a person’s liberty
what factors must be considered when assessing the ability of a cco to achieve specific deterrence?
- length of cco
- mandatory conditions
- nature of additional conditions
what factors must be considered when assessing the ability of a cco to achieve general deterrence?
- nature of cco
- whether the cco is communicated to the public or not
what factors must be considered when assessing the ability of a cco to achieve denunciation?
- length of the cco
- conditions imposed
what factors must be considered when assessing the ability of a cco to achieve rehabilitation?
- additional conditions imposed
- whether or not the offender will actively participate in rehab/continue rehab after cco is finished
- offender’s circumstances, e.g. support from family and friends
what factors must be considered when assessing the ability of a cco to achieve protection?
- whether the offender is rehabilitated and deterred
- additional conditions imposed
what is imprsionment?
a sanction that involves removing the offender from society for a stated period of time and placing them in prison
what are the levels of imprisonment?
1-9, 1 being most serious (life imprisonment) and 9 being least serious (6 months imprisonment)
what is parole?
the supervised and conditional release of a prisoner after the minimum period of imprisonment has been served
what is a non-parole period?
the minimum term that a prisoner must serve before they can be given parole
what are the rules surrounding parole for a 1-2 year sentence?
the court can choose to sate a non-parole period, and after the period, the adult parole board reviews the prisoner’s suitability for parole
what are the rules surrounding parole for a sentence of 2 years or more?
the court must state a non-parole period, to which conditions can be attached
what happens if the court doesn’t state a non-parole period or a prisoner who applies for parole is rejected?
they must serve their sentence in full
what is the maximum term of imprisonment the magistrate’s court can sanction?
1 summary offence = 2 years max
2 or more summary offences = 5 years max
what is remand?
the situation where an accused is kept in custody until their criminal trial can take place
what is a concurrent sentence?
a sanction that is to be served at the same time as one or more other sentences (usually given in relation to two terms of imprisonment)
what is a cumulative sentence?
where two sentences are imposed, and are to be served one after the other (e.g. a term of imprisonment is to be commenced after a first term is already served)
for what offences are cumulative sentences given?
- certain serious offences including arson and certain drug, sexual, and serious violent offences
- where the imprisonment term is in default of payment of a fine or a sum of money
- for an offence by a prisoner or an escape offence
- for an offence committed by a person released on parole or bail
what is an indefinite sentence?
a term of imprisonment that has no fixed end date, usually given for the most serious offences
when can an indefinite sentence be imposed?
if a person who is not a young person is convicted by either the county or supreme court of a serious offence (including murder, manslaughter, child homicide, threats to kill, rape, kidnapping, armed robbery, and sexual offences involving children under 16)
what are the conditions for the court to impose an indefinite sentence?
the court must be satisfied to a high degree of probability that the offender is a serious danger to the community because of:
- their character, past history, health, age, or related condition
- the nature and gravity of the serious offence
- any special circumstances
why does the court have to periodically review indefinite sentences?
because if the court is not satisfied that the offender is still a danger to the community, then the indefinite sentence must be discharged, and the offender must undergo a 5 year reintegration program administered by the adult parole board
who can appeal a decision to discharge/not discharge an offender on an indefinite sentence?
the office of public prosecutions (opp)
what are the main sentencing purposes achieved by imprisonment?
punishment, deterrence, denunciation, and protection
what factors must be considered when assessing the ability of imprisonment to achieve punishment?
- length of imprisonment term
- offender’s circumstances (e.g. mentally impaired offender may not understand impact of imprisonment)
what factors must be considered when assessing the ability of imprisonment to achieve specific deterrence?
- length of imprisonment term
- offender’s circumstances
- nature of imprisonment term (e.g. prison can normalise criminal behaviour, exposing offender to negative influences reduces deterrence)
what factors must be considered when assessing the ability of imprisonment to achieve general deterrence?
- circumstances of offender (e.g. circumstances are too unique to deter general public)
- length of sentence
what factors must be considered when assessing the ability of imprisonment to achieve denunciation?
- length of sentence
- communication of sentence to the public (people must understand the sentence and the wrongful behaviour)
what factors must be considered when assessing the ability of imprisonment to achieve rehabilitation?
- programs that are available (depends on the programs available + if they are tailored to the offender’s specific needs, e.g. programs that promote family connection are more effective)
- whether offender is willing to participate (forced to participate = doesn’t address underlying causes of offending)
- offender’s prospects of rehabilitation (e.g. remorse + past criminal activity)
- whether offender has any addictions
- length of sentence (shorter sentence/non-parole period can incentivise rehab + reduce negative custodial impacts)
what factors must be considered when assessing the ability of imprisonment to achieve protection?
- length of sentence (protection of public only lasts as long as sentence does)
- circumstances of offender
- whether offender is treated or not (if treated, less likely to reoffend upon release, protecting the public)
what are sentencing factors?
factors that are considered when the court is deciding on an appropriate sanction for an offender
what are the main sentencing factors?
- aggravating factors
- mitigating factors
- guilty pleas
- the impact of the crime on the victims, often determined through victim impact statements
what are aggravating factors?
factors of circumstances about an offender or an offence that can lead to a more severe sentence (they increase the offenders culpability)
what are examples of aggravating factors?
- use of violence, explosives, or a weapon when committing the offence
- if the offending was planned or premeditated
- the nature and gravity of the offence (e.g. if the victim suffered a particular type of brutality or cruelty, offence involved family violence, or offence was unprovoked)
- any vulnerabilities of victim (e.g. young, old, disability, frail, etc.)
- if offender was motivated by hatred or prejudice against a group of people with common characteristics
- if the offence took place in front of children or was seeen by children
- if there was a breach of trust by the offender towards the victim (offender was in a position of trust, e.g. parent and child, teacher and student, etc.)
- if the offender had prior convictions
- if the offence occured whilst the offender was on a cco, on parole, or on bail
what are mitigating factors?
factors or circumstances about an offender of an offence that can lead to a less severe sentence (they decrease the offenders culpability)
what are examples of mitigating factors?
- if the offender showed remorse (can be demonstrated through the offenders conduct after the offence, e.g. cooperating with police, pleading guilty early, general behaviour at court hearings, etc.)
- if the offender has no prior criminal history or they are of good character
- if the offender was acting under duress
- if the offender has shown efforts towards rehabilitation while awaiting sentencing, or has good prospects of rehabilitation
- if the offender was under personal strain at the time or they have a unique background (e.g. difficult or violent childhood)
- the effect that prison may have on the offender (e.g. prison may not be suitable for offenders with serious mental health issues)
- if the injury or harm caused by the offence was not substantial, or there was no risk to any people
- if the offender was young or had a disability that made them not fully aware of the consequences of their actions
what is a guilty plea?
when an offender formally admits guilt, which is ocnsidered by the court during sentencing
what does an early guilty plea do to an offender’s sentence?
reduces their sentence
why are guilty pleas considered as a sentencing factor by the court?
- because if the offender knows that a guilty plea is considered during sentencing, they may be encouraged to plead guilty rather than go to trial
- early guilty pleas benefit the criminal justice system and the prosecution by avoiding the time, costs, and stresses of a trial
- early guilty pleas benefit the victim and their family by avoiding the trauma of a trial for victims
what is a victim impact statement?
a statement filed with the court by a victim that is considered by the court when sentencing (contains particulars of any injury, loss, or damage suffered by the victim as a result of the offence)
what can be attached with a victim impact statement?
medical and psychological reports of the victim
how is a victim impact statement presented to the court?
the victim may choose to have it read aloud, either by themselves or a court approved person of their choosing
