U3 AOS1 The Australian Criminal Justice System (2)

Question 1

What are the exceptions to the right to trial by jury?

Answer 1

The right does not apply to summary offences (because of the Criminal Procedure Act 2009 (Vic)), but does extend to those who have been charged with a Commonwealth indictable offence (because of s.80 of the Australian Constitution).

Question 2

Who can be placed on the Victim’s Register?

Answer 2

A person can be placed on the Victim’s Register if they or their family member are a victim of a serious offence (e.g., murder, armed robbery, or sexual offences).

Question 3

What is Victorian Legal Aid’s (VLA) role in assisting an accused person?

Answer 3

Publish free information about minor criminal matters and the criminal justice system which assists those charged with minor offences and will be forced to represent themselves (i.e., websites, libraries, or phone services);

Providing free initial legal advice to those charged with offences in person or over the phone;

Providing duty lawyers (i.e., lawyers based in the Magistrates Court, and children’s court) available to advise and to represent litigants;

Question 4

Victorian Legal Aid (VLA)

Answer 4

A government-funded agency that aims to provide free legal advice and information regarding a range of legal disputes including criminal and family law, Centrelink matters, child protection issues among others, to those in the community who need it the most (i.e., refer to Victorian Legal Aid’s (VLA) strict criteria for legal assistance).

Question 5

Duty lawyers

Answer 5

Lawyers based in the Magistrates Court who attend court for relatively minor criminal matters that can provide information and case specific advice from those who meet the low-income test. In some cases, duty lawyers may provide legal representation in court for accused person held in custody who do not have a lawyer, facing more serious charges and meet such criteria (e.g., those with mental illness, a disability, or who do not speak English).

Question 6

What is the Victorian Legal Aid’s (VLA) strict criteria for legal assistance?

Answer 6

Due to lack of funding, Victorian Legal Aid (VLA) is only accessible to those who are very poor and can’t afford a solicitor, homeless, have limited English skills, or are suffering from a mental issue.

Question 7

What are Community legal centres (CLCs) role in assisting an accused person?

Answer 7

Provide individuals with legal information, legal advice, and minor assistance;

Provide legal casework services (i.e., case specific advice as to how to conduct their case in the Magistrates court);

Provide legal representation in a small number of cases through duty lawyers;

Question 8

Community legal centres (CLCs)

Answer 8

Non-for-profit community-based organisations that provide free legal advice, casework and information and a range of community development services to their local communities. Each CLC is independent and therefore has different criteria regarding who it will assist and what assistance it will provide.

Question 9

What are the purposes of committal proceedings? (s.97 of the Criminal Procedure Act 2009)

Answer 9

To determine whether a charge for an offence is appropriate to be heard and determined summarily;

To determine whether there is evidence of sufficient weight to support a conviction for the offence charged;

To determine how the accused proposes to plead to the charge;

To ensure a fair trial if the matter proceeds to trial;

Question 10

What happens at the conclusion of committal proceedings?

Answer 10

When a magistrate decides whether a ‘prima facie case’ exists, or a magistrate decides whether a jury looking at the prosecutions case could deliver a guilty verdict. If so, the accused is committed to trial at a higher court, and if not, the accused persons charges are acquitted, and the person is discharged.

Question 11

Hand-up-brief

Answer 11

A committal hearing conducted with written statements. It includes a summary of the evidence against the accused in a written or documentary format presented by the prosecution which can include but is not limited to a copy of the charge sheet, sworn statements from victims, witnesses or the accused, transcripts of interviews, copies of any other documents, forensic evidence (e.g., photographs), expert evidence (e.g., autopsy report) and a list of exhibits that the prosecution wishes to present as evidence.

Question 12

Prima facie case

Answer 12

Translates to ‘on the face of it’ and is used to describe a case where the evidence on initial examination, appears to sufficiently corroborate a case as to warrant its hearing, and there is enough evidence to indicate that the prosecution will likely be successful.

Question 13

Prosecution

Answer 13

The party bringing a case against the defendant in a criminal trial representing the Crown.

Question 14

Defence

Answer 14

The party to a criminal trial whose responsibility it is to seek justice for their client (the defendant).

Question 15

Judge

Answer 15

A public officer appointed to conduct, and decide trials or hearings and resolve legal disputes in court.

Question 16

Jury

Answer 16

A jury is a group of 12 people representing a cross-section of the community, randomly selected from the electoral roll required to deliver a verdict (guilty/not guilty) in trials for indictable offences, on the basis of the evidence presented in court.

Question 17

What do pre-trial procedures consist of?

Answer 17

Pre-trial procedures consist of bail, remand, committal proceedings, and plea negotiations, and sentence indications.

Question 18

Remand

Answer 18

When someone is held in custody (e.g., in a prison, police or court cells etc) while waiting for their trial or sentencing. The court has to decide if the accused is to be granted bail.

Question 19

Committal hearing

Answer 19

The final hearing in the committal process.

Question 20

Plea brief

Answer 20

A plea brief lists the charges and states the facts of the case, including statements by any victims if the accused decides to plead guilty.

Question 21

Committal proceedings

Answer 21

A set of court hearings held in the Magistrates’ Court starting with a filing hearing through to a committal hearing to decide whether there is sufficient evidence against an accused person charged with a serious criminal offence to order them to face trial in a higher court.

Question 22

Why is Victorian Legal Aid (VLA) regularly criticised?

Answer 22

Victorian Legal Aid (VLA) is funded by governments and is regularly criticised for being insufficient to meet the community’s demands for legal services. Due to a lack of funding, a large part of the community is ineligible for legal aid. People are often forced to defend themselves in criminal cases.

Question 23

Identify the victims right’s

Answer 23

The right to give evidence as a vulnerable witness, the right be informed about the proceedings, and the right to be informed of the likely release date of the accused.

Question 24

The right to give evidence as a vulnerable witness

Answer 24

When someone who is considered ‘vulnerable’ is required to give evidence in court, certain arrangements, deemed allowable and appropriate by the court, should be made to accommodate them in light of their vulnerability. This right is protected by the criminal procedures act.

Question 25

Improper questions

Answer 25

The Evidence Act 2008 (Vic) allows the court to disallow ‘improper questions’ to vulnerable witnesses;

Such questions include those which are deemed to be confusing, harassing, intimidating, offensive or humiliating or based on a stereotype, such as a victim’s gender, sexuality or religion;

Question 26

Vulnerable

Answer 26

Witnesses will generally be considered vulnerable when they are especially impressionable or ‘at risk’ when giving evidence such as if the witness is a child under the age of 18, suffers from a mental disability, is an alleged victim of sexual offence, or is the victim of family violence.

Question 27

What accommodations can be made for a vulnerable witness giving evidence in court?

Answer 27

Witnesses being able to give evidence via closed circuit television as they may be intimidated by the atmosphere of the court room;

Witnesses may give evidence behind a screen, so they do not have to face the accused;

Certain individuals may be barred from the courtroom if there is a reasonable belief that they could intimidate a witness by their presence alone;

Question 28

The right to be informed about the proceedings

Answer 28

The right that a victim of crime has to be informed and knowledgeable about the case in which they are involved. This is because they have been directly affected by the alleged crime and normally wish to know about the outcome of the police investigation. This right is protected in sections 7,8, and 9 of the Victims Charter.

Question 29

Regarding an offenders release date, what does the victim have the right to know?

Answer 29

The length of the offenders sentence including any chances to the length of sentence;

The earliest possible release date;

If the offender is on parole, or whether parole is cancelled;

Question 30

Identify three pieces of information that a victim has the right to know

Answer 30

The offence which the accused has been charged;

If the charges were withdrawn or changed including the reason why;

Outcomes of a trial, including the verdict and any sanctions imposed by the court;

Question 31

The right to be informed of the likely release date of the accused

Answer 31

The right that a victim of some crimes has in which they will be notified about the likely release date of the offender. This information will be provided to victims of crime by the Office of Public Prosecutions and Victoria Police. This right is protected is section 17 of the Victims charter.

Question 32

The Victim’s Register

Answer 32

A government record of victims (or their family member) of particular crimes in which those who are placed on the Victims Register will be notified about the likely release date of the offender.

Question 33

List the two types of community legal centres (CLC’s)

Answer 33

The two types of community legal centres are generalist specialist.

Question 34

The eligibility criteria for CLS’s

Answer 34

Those with a disability, mental health issues, refugees, homeless or young people fit into the criteria for community legal centres (CLC’S) assistance.

Question 35

Explain the difference between CLC’s and VLA

Answer 35

VLA will provide grants of money (legal assistance) to cover the cost of going to court. These grants are capped and the accused must meet a means test. The Accused does not have to have a VLA lawyer represent them – they can go to a private lawyer but the private lawyer will only be paid to the extent of the grant. Whereas CLC’s do not provide grants of money to cover the cost of going to court.

Question 36

Surety

Answer 36

A condition attached to bail in which a person (i.e., the guarantor) puts up a form of security such as money to guarantee the accused appearance in court for their trial. When money is used as a security, this will be forfeited if the accused fails to appear for their trial, or does not uphold the conditions of bail.