U3 AOS1 The Australian Criminal Justice System (6)

Question 1

Shyness and submissiveness

Answer 1

Some Indigenous people may be too willing to submit to authority and therefore give up some of their rights, such as the right to remain silent.

Question 2

Cultural taboos

Answer 2

In some Indigenous cultures, mentioning things, such as the names of dead people, people in disgrace or certain gender-based matters, is forbidden. This can cause difficulties for some accused people.

Question 3

How is fairness achieved despite cultural differences?

Answer 3

The presumption of innocence and the high standard of proof required for a conviction protect those who have difficulty presenting their evidence or defence, as they do not need to prove their innocence.

Question 4

How is access achieved despite cultural differences?

Answer 4

The use of the Koori Court allows more indigenous offenders to have culturally relevant sentencing that does more to reduce reoffending.

Question 5

How is equality achieved despite cultural differences?

Answer 5

The role of the prosecution is to ensure all relevant facts and legal principles are presented to the court, and not to pursue a conviction at all costs. This role in helping the whole truth emerge can overcome difficulties faced by indigenous/migrant victims, witnesses and accused persons who may otherwise have difficulty presenting their evidence in its best light.

Question 6

Indigenous Australians in the criminal justice system

Answer 6

A history of dispossession and social exclusion by governments has led many in Australia’s indigenous communities to not trust those in the criminal justice system. Some indigenous Australians’ cultural respect for authority can lead to a tendency to answer questions from police/lawyers/the courts in a way they feel is expected, rather than what has actually occurred.

Question 7

Describe two strengths of the criminal justice system in achieving access

Answer 7

Victim’s rights: Accommodations in giving evidence for vulnerable witnesses promotes access as it enables witnesses who may otherwise be too intimidated to participate in a trial a way they can still be involved; avoids prosecutions being discontinued due to victims’ fear of giving evidence.

Availability of CLC’s: CLC s are located all over metropolitan Melbourne, and some provide legal assistance over the phone, promoting accessibility to legal advice.

Question 8

Describe two weaknesses in the criminal justice system to achieve access

Answer 8

Costs: Less financially able offenders cannot afford to pursue an appeal due to filing fees and the necessity of legal representation.

Online information: A lot of VLA’s information about the criminal justice system is provided online; those with low incomes, the homeless or the elderly may not have access to an internet-connected device where they would be able to access this legal information.

Question 9

Describe two strengths of the criminal justice system in achieving fairness

Answer 9

Jury trials: Use of juries in trials for indictable offences ensures decision-makers are independent (with a range of safeguards in jury empanelment and management to ensure they remain independent), which is fair.

Duty lawyers: The provision of duty lawyers in the Magistrates’ Court provides advice and assistance to some accused persons, ensuring a fairer hearing for these individuals.

Question 10

Describe two weaknesses of the criminal justice system in achieving fairness

Answer 10

Legal representation in court: Due to the limited assistance provided by CLC’s unrepresented parties may not present all relevant evidence to the court, which can disadvantage their defence; if accused persons fail to produce relevant evidence/legal argument/legal defence due to lack of legal representation this may lead to an incorrect outcome, which is unfair.

Cost of appeals: Costs associated with appeals (filing fees and legal representation) can mean offenders may not be able to appeal to have incorrect decisions corrected.

Question 11

Describe two strengths of the criminal justice system to achieve equality

Answer 11

Opportunity to present a case: Both parties are given equal opportunity to prepare and present their case to the court in its best light.

Right to a fair hearing: Right to fair hearing upholds equality as the same fundamental rules of evidence and procedure apply to all accused persons, regardless of age, race, wealth and so on. All accused persons are entitled to a decision-maker free from bias, and the ability to test the evidence led against them.

Question 12

Describe two weaknesses of the criminal justice system to achieve equality

Answer 12

Role of legal practitioner: Some financially disadvantaged parties may not be able to afford any/ good quality legal representation, leading to an unequal presentation of cases at trial.

Cultural difficulties: Indigenous Victorians are overrepresented in Victorian prisons, and the criminal justice system needs greater reforms to reduce this – a person’s race/background should not make them more likely to be in prison.

Question 13

Reform

Answer 13

The adoption of new or more effective methods for the adminisatration of the law and the dispensation of justice.

Question 14

Describe a recent reform for cost

Answer 14

In 2018/19 Victorian State Budget, the government increased its funding of Victoria Legal Aid by $37.3million over the following 4 years.

Question 15

Describe a recommended reform for cost

Answer 15

A $390 million dollar increase in funding for VLA and CLC; Recommended by ‘The Justice Project’ who recommended a boost of $390 million each year for VLA. The boost would apply to all states and territories across Australia and would apply to all legal disputes (i.e., not just criminal, which would include family law, civil disputes, and Centrelink disputes).

Question 16

Describe a recent reform for time delays

Answer 16

2020 emergency power to conduct judge-only trials in the County Court & Supreme Court (Trial Division); In response to the pandemic and the restrictions imposed by government, the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) amended the Criminal Procedure Act 2009 (Vic) to permit judge-only trials for indictable offences. The temporary change in criminal procedure was intended to ensure the justice system continues to resolve serious criminal matters during periods of restrictions/lockdown related to coronavirus outbreaks.

Question 17

The criteria to permit judge-only trials for indictable offences

Answer 17

The accused is charged with offences under Victorian law and not Commonwealth offences; the accused consents to trial by judge alone rather than a jury trial; and the accused has been given legal advice about waiving their right to a jury trial; and the County Court or Supreme Court decides it is in the interests of justice to conduct a trial by judge alone.

Question 18

Describe a recommended reform for time delays

Answer 18

Abolish peremptory challenges/prosecution stand-asides in the process of empanelling a jury; Currently an accused person can challenge (and the prosecution can stand-aside) a small number of prospective jurors during the empanelment process. This proposal would prevent parties ‘skewing’ the representativeness of a juryThis proposal would reduce the time taken to empanel a jury.

Question 19

Koori Court sentencing process

Answer 19

Involves respected community elders discussing with the offender the reasons for their offending and the impact of their crime on the victim, the offender, the offender’s family, and the local indigenous community.

Question 20

The effect of sentencing conversation

Answer 20

This sentencing conversation causes the offender to re-think their behaviour much more than during a more traditional sentencing hearing. The County Court judge then imposes a sanction, which is often imprisonment. The sanctions imposed are not more/less severe than those imposed in the County Court using a traditional sentencing hearing, however the sentencing process has proven effective at reducing reoffending.

Question 21

Define ‘experts’ of how indigenous Victorians interact with the legal system

Answer 21

Those with expertise in working with indigenous Australians charged with criminal offences and/or representatives from the Koori Court/County Koori Court and/or Indigenous elders/respected community leaders.

Question 22

Describe a recommended reform for cultural differences

Answer 22

Ensure the new Sentencing Guidelines Council includes experts on how Indigenous Victorians interact with the legal system, as recommended by VLA; To ensure sentencing options suggested better support in indigenous offenders to be rehabilitated and deterred from reoffending, as clearly too many indigenous Victorians are in prison.

Question 23

Describe a recent reform for cultural differences

Answer 23

County Koori Court expansion 2020; The Koori Court provides a different sentencing approach for indigenous Victorians who plead guilty for some, but not all offences. A justice system which supports the participation of Elders and Respected Persons from local Aboriginal communities, results in better engagement with the system by Aboriginal Victorians and better helps offenders address the causes of their offending and helps prevent re-offending.

Question 24

Why was the County Koori Court expanded in 2020?

Answer 24

Established in 2020 to provide fair, equitable and culturally relevant justice services to Indigenous community, as well as to provide the Indigenous community with greater protection and participation in the sentencing process for criminal offences.

Question 25

Before the Koori court can be used for sentencing, what are some conditions that must be met?

Answer 25

The accused must be an Indigenous person; the accused must plead guilty or intend to plead guilty as the Koori Court is not a trial court and is only used for sentencing; the court must ensure that proceedings are informal and conducted in such a way that they can be understood by the accused, the accused family and any member of the indigenous community who is present in court;