U3 AOS1 The Australian Criminal Justice System (1)

Question 1

The principles of justice

Answer 1

The fundamental or basic ideas and values that try to promote just treatment and outcomes in our legal system. The principles of justice are used to determine whether or not justice has been achieved.

Question 2

Fairness

Answer 2

Treatment or behaviour without favouritism or discrimination-free from bias or injustice with impartial processes in place so all parties receive a fair hearing. Parties in a legal case should also have an opportunity to know the facts of the case and have the opportunity to present their side of events.

Question 3

Equality

Answer 3

The state of all people being treated equally before the law, especially in status, rights, or opportunities. In addition, both parties should have an equal opportunity to present their case without advantage or disadvantage.

Question 4

Access

Answer 4

Access means making legal procedures available to everyone (e.g., legal advice, information, or assistance) in light of any and all disadvantaged they may face (e.g., financial). In addition, individuals in society including accused persons, victims of crime and witnesses giving evidence in a trial understand legal rights and the ability to peruse their case.

Question 5

What does fairness in the criminal justice system look like?

Answer 5

All hearings being conducted in public;

Prejudicial and irrelevant evidence not influencing courts decisions (e.g., accused persons prior convictions);

Accused persons having their personal characteristics considered in sentencing (e.g., a young first-time offender who has shown remorse should be treated differently to a middle-aged career criminal);

Question 6

What does equality look like in the criminal justice system?

Answer 6

All victims of crime being able to remain informed about proceedings and contribute to the sentencing process, regardless of personal characteristics such as ethnicity;

Procedures in the courts being applied in the same manner in all cases;

All members of the community are subject to the standards of behaviour set by the criminal law; those in more powerful positions in society (members of parliament, police officers, the very wealthy) are not entitled to preferential treatment by the courts (either as a victim of crime or an accused person).

Question 7

What does access look like in the criminal justice system?

Answer 7

Individuals understanding the court system;

Victims of crime understanding their legal entitlement in the criminal justice process;

Being able to engage with services to support those in the court system (e.g., legal representation, support for victims etc);

Question 8

Summary offence (misdemeanour)

Answer 8

A type of criminal offence, minor in nature that are usually resolved in the Magistrates’ Court by a single magistrate or by an infringement notice, that do not have the right to trial by jury. Examples of summary offences include tattooing of juveniles, disorderly conduct, or food and drink spiking.

Question 9

Identify examples of indictable offences that can be tried summarily

Answer 9

Recklessly causing serious injury (s.17 Crimes Act);

Theft robbery and burglary if the property stolen does not exceed $100,000 (section 74-76 Crimes Act);

Question 10

Indictable offences triable summarily

Answer 10

A subset of indictable offences that may be heard like a summary offence by a magistrate (without a jury), with the agreement of the prosecution, the accused and the court instead of a judge and jury in a higher court (e.g., the County or Supreme Court).

Question 11

Why would an accused prefer their offence to be triable summarily?

Answer 11

The accused will almost always prefer this option as the hearing will be quicker and cheaper. Additionally, in many cases, the maximum penalty that can be imposed by the Magistrate will be lower than that which could be imposed by a County Court or Supreme Court judge.

Question 12

Burden of proof

Answer 12

The obligation or responsibility of a party to prove the facts of a case that usually rests with the party who initiates the action (the plaintiff in a civil dispute and the prosecution in a criminal case).

Question 13

The standard of proof

Answer 13

The strength of evidence or level of confidence required to support a case (the standard of proof in a criminal case is ‘beyond a reasonable doubt’ and in civil cases it is ‘on the balance of probabilities’).

Question 14

Beyond a reasonable doubt

Answer 14

The confidence the presiding magistrate/judge/jury in a particular case that the accused is guilty, therefore it would be unreasonable to return a verdict of ‘not guilty’. Or it can be taken to mean the absence of any doubt that is realistic. It cannot be imaginary of fanciful and must be more than a strong belief in guilt.

Question 15

Prosecution

Answer 15

The lawyers who prepare a criminal case and take it into court on behalf of the state, the victim and society.

Question 16

An accused

Answer 16

A person charged with a criminal offence.

Question 17

On the balance of probabilities

Answer 17

The standard of proof in civil disputes that rests on the plaintiff in a civil dispute to prove that the defendant was more probable or likely than not to have committed the version of facts accused of.

Question 18

Bail

Answer 18

When a person who has been charged with an indictable offence is released from custody until the time of their court hearing or trial. Conditions may be attached to the granting of bail such as a surety or guarantor, a person who guarantees the accused appearance in court by putting up some form of a security such as a sum of money.

Question 19

Crime

Answer 19

An act (doing something) or omission (failure to do something) that is against existing law, harmful to an individual or society as a whole, and punishable by law.

Question 20

The presumption of innocence

Answer 20

A guarantee made to all accused persons regardless of who they are and the circumstances of the case in which they are implicated that they are thought of as innocent until it is proven, beyond a reasonable doubt, that they are guilty.

Question 21

How do bail laws support the presumption of innocence?

Answer 21

For most offences, an accused person is released from custody after being charged until their date of trial. This is because, at that time, they are presumed to be innocent and should, unless they pose a particular risk, be free to remain in the community as an innocent person.

Question 22

How is the presumption of innocence reflected in other aspects of the criminal justice system?

Answer 22

The accused’s right to silence (which cannot be implied to indicate guilt);

The need for a committal hearing before a magistrate before any trial for an indictable offence is heard in a superior court;

The prior convictions of an accused not being revealed to the jury prior to their reaching their verdict;

Question 23

List the rights of the accused

Answer 23

The right to be tried without unreasonable delay, the right to a fair hearing, and the right to trial by jury.

Question 24

The right to be tried without unreasonable delay

Answer 24

The right of the accused person to have their case heard/ decided in a timely manner unless there are reasonable grounds because their case should be delayed. The right to be tried without unreasonable delay is protected by s. 21 and 25(2) of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic).

Question 25

What may be considered a ‘reasonable’ delay?

Answer 25

An example of a reason for delay may include case backlogs in courts, availability of resources, and impact on the victim and the accused.

Question 26

Identify factors used to determine what constitutes an ‘unreasonable’ delay

Answer 26

Factors used to determine an unreasonable delay (according to R v Upton) may include the complexity of the case.

Question 27

Right to a fair hearing

Answer 27

The right of an accused person charged with a criminal offence or a party to a civil proceeding to have the charge or case heard and decided fairly, publicly and presided over by a competent and independent court or tribunal. * The right to a fair hearing is protected by section 24(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic)

Question 28

How is the right to a fair hearing reflected in criminal proceedings?

Answer 28

There are consistent rules of evidence and procedure to ensure guilty verdicts are based only on reliable relevant evidence;

The ability to cross-examine prosecution witnesses, to test the accuracy of the prosecution’s evidence;

The accused is given the opportunity to present evidence in their defence, to ensure equality of opportunity to present ‘their side’ of the case;

Question 29

Who is excluded from the ‘public’?

Answer 29

When a court decides at their discretion to exclude certain individuals, or groups from attending a particular hearing as their presence may distress, or intimidate a witness while giving evidence and detract attention away from the proceeding.

Question 30

Right to trial by jury

Answer 30

The right to be tried by an unbiased jury comprising the accused person’s peers who have been randomly selected from the electoral roll. This right applies where an accused person pleads guilty to an indictable offence. This right is protected by the Criminal Procedure Act 2009 (Vic).

Question 31

Victim

Answer 31

The victim or complainant is someone who suffers harm as a result of an act committed by another person in the course of a crime.

Question 32

Contested committal hearing

Answer 32

A committal hearing in which the accused may apply to the court to cross examine at witness. If the court allows for the particular witness to appear the matter will proceed to a contested committal hearing.

Question 33

List the stages in a committal proceeding

Answer 33

Filing hearing, committal mention hearing (preliminary hearing), and a committal hearing;

Question 34

Committal mention hearing (preliminary hearing)

Answer 34

The accused may apply to the court to cross examine a witness. If the court allows for the particular witness to appear, the matter will proceed to a contested committal hearing. If the application is not approved by the court, the matter will proceed to a hand up brief.

Question 35

Victim impact statement

Answer 35

A statement filed with the court by a victim or their respective family in the event of their death, that is considered by the court when sentencing. It contains particulars of any injury, loss or damage suffered by the victim as a result of the offence.

Question 36

List the key conepts of the criminal justice system

Answer 36

The burden of proof, the standard of proof, the presumption of innocent, summary and indictable offences;