U3 AOS1 The Australian Criminal Justice System (4) Flashcards
Cross-examination
The process of questioning witnesses called by the prosecution, to test the accuracy and reliability of the evidence they present in court.
Legal practitioner
An individual with legal training, qualified to give evidence and appeal in court. Generally, a solicitor prepares legal documentation (e.g., the hand-up brief presented during a committal proceeding) and a barrister is responsible for representing a party in a trial (e.g., making legal arguments etc).
Responsibilities of the prosecution in the opening and closing address
When the barrister outlines their case at the beginning (opening address) and end (closing address) of the trial this includes a summary of the evidence they will present/have presented, the facts they want the court to accept as true based on this evidence, and a summary of legal arguments as to why the accused is guilty beyond reasonable doubt.
Responsibilities of the prosecution in the presentation of the case to a judge and jury
The responsibility of the prosecution to present all relevant evidence, by calling witnesses for examination in front of the judge and jury throughout the trial. This means asking questions of the witnesses they call, with witnesses’ responses informing the court as to the facts in the dispute.
Responsibilities of the defence in the opening and closing address
Accused person’s barrister will summarise legal arguments for why accused is not guilty (raising lawful defences) and/or challenge whether the prosecution has proven the accused person is guilty beyond reasonable doubt (which may include summarising any doubts raised during the trial about the accuracy of the evidence presented by prosecution witnesses).
Responsibilities of the defence in the presentation of the case to a judge and jury
The accused person’s legal representative will cross examine witnesses called by the prosecution, to test the accuracy and reliability of the evidence they present in court.
List three responsibilities that are similar to the prosecution and the defence
All legal practitioners have a duty to assist the court, by raising all relevant legal principles that the court may need to consider in reaching a verdict (even if such legal principles are in conflict with their client’s interests);
All legal practitioners have a duty not to mislead the court and a duty to act with courtesy towards the court and all witnesses;
All legal representatives advise the judge as to which legal principles should be presented to the jury in the judge’s final directions;
List the purposes of sanctions as protected in section 5 of the Sentencing Act 1991 (Vic)
Punishment, deterrence (i.e., specific and general), rehabilitation, denunciation, and protection.
What is the purpose of punishment as a sanction?
A sanction imposed that is more severe to ensures offenders ‘pay’ for the impact their crimes have had on victims of crime and or society as a whole therefore sentencing judges use the totality and proportionality principles.
The totality principle
Requires a sentencing judge to impose a sentence that is should be just appropriate to reflect the entire or overall impact of an offender’s crimes where the offender has been convicted of a number of crimes.
The proportionality principle
A sentence should reflect the gravity of the offender’s criminal behaviour that is, ‘how much’ someone should be punished should more or less equate to ‘how much’ detriment that offender’s crimes have caused.
Sanctions
A penalty imposed by a court after an accused person is found guilty on an offence or pleads guilty to an offence.
The principle of parsimony
A sentencing judge must take the five purposes set out in the Sentencing Act into consideration when imposing a sentence but must not impose a sentence that is more severe than necessary to achieve the purpose of the sentence imposed.
What is the purpose of deterrence as a sanction?
A means to ‘make an example’ of the offender in an effort to sway the offender or possible future offenders away from committing similar crimes through the imposition of a more severe criminal sanction that of which will usually be accompanied by comments from the court stating that the longer sanction is designed to specifically and/or generally discourage such offending.
Specific deterrence
Occurs when the offender themselves is discouraged from committing offences of the same or similar character through the provision of a sanction.
General deterrence
Occurs when individuals other than the offender (the public at large) are discouraged from committing offences of the same or similar character through the provision of a sanction.
What is the purpose of rehabilitation as a sanction?
To sentence criminal offenders in a manner that aims to break the cycle of criminal behaviour (or ‘recidivism’) so that criminal offending may be prevented or stopped, thereby addressing the underlying cause of the criminal behaviour.
Advantages of rehabilitation
Some criminologists argue that criminals are ‘born not made’ therefore some believe that it is particularly important to rehabilitate juvenile offenders in order to stop the cycle of serial criminality. Rehabilitation is also encouraged because recidivism statistics suggest that offenders who have undergone some kind of rehabilitation have a better chance of integrating back into society, facilitating more stable family environments, and sustaining employment upon their release.
Disadvantages of rehabilitation
Some criminologists argue that criminality is innate and therefore rehabilitation has little to no effect on criminals. There are high costs involved with facilitating rehabilitative services in prisons and juvenile institutions, an expense that some argue is unworthy of investment as people who have committed crimes do not deserve such a luxury at the public’s expense.
What is the purpose of denunciation as a sanction?
A means to publicly condemn or criticise the offender’s criminal behaviour by imposing a more severe sanction to highlight the extent to which the offender has transgresses against or violated the moral and ethical standards of society. This will usually be accompanied by comments from the court stating the extent of the court’s outrage and condemnation regarding the offence in question.
What is the purpose of protection as a sanction?
A means to ensure that offenders who pose a significant risk to the welfare of society (and/or their victims) are removed from the community. The level of protection provided to society should be proportionate to the degree of risk posed by an individual offender.
List the types of sanctions
Fines, community correction order (CCO), and imprisonment.
Fine
A monetary payment the court will order an offender to make, as a penalty for a criminal offence expressed in penalty units (i.e., in 2019 one penalty unit equates to $165.22).
Factors considered when imposing a fine
When imposing a fine, a judge takes into account the financial circumstances of the offender, any aggravating or mitigating factors and the purpose the court wishes to achieve.
