U3 AOS1 - The Victorian Criminal Justice System Flashcards
what is fairness?
Fairness requires a level of impartiality and a lack of bias in legal processes, systems, and institutions. It also requires that all parties to a case receive an unbiased hearing, meaning that the person exercising administrative power, eg. the judge, is objective and impartial.
what is equality?
The legal system should strive to achieve non-discriminatory outcomes, including equal protection for all who come before it. However the system acknowledges that, invariably, there are differences, and so there should be resources that exist to provide balance, therefore, seeking equal rights and responsibilities, and ensuring no individual is disadvantaged.
what is access?
Requires that all people should be able to understand their legal rights and pursue their cases. This means more than just being able to access the institutions that hear criminal cases, but also for people to be able to approach bodies that provide legal advice, education, information, and assistance about the various proceedings that occur.
what are summary offences?
minor criminal offences that are heard in the magistrates court by a magistrate (rather than a judge) and they can be heard in the absence of an accused. EG. drink driving, minor assaults, and disorderly conduct.
Some summary offences are listed in the Summary Offences Act 1966 (vic), but many are listed in other statutes and legislation.
what are indictable offences?
serious offences heard by judge (and jury if accused pleads not guilty) in the County or Supreme Court. They must be heard in the presence of the accused, and the final hearing is called a trial. EG. homicide or sexual offences
Indictable offences are listed in the Crimes Act 1958 (Vic).
what are indictable offences heard summarily?
serious offences that can be heard in the MC. An offence may be tried summarily if the court believes it is appropriate and the accused will opt for this as MC is cheaper/quicker and has a lesser max penalty. EG. some stealing and theft cases
what are the four main differences between summary and indictable?
- Summary is minor, indictable is serious
- Summary offences are exclusively heard in magistrates court,whereas indictable offences are generally heard in the county or supreme court.
- Summary offences may be heard in the absence of the accused, but indictable offences must be heard with the accused.
- There is no right to a jury in summary offences, but there is in indictable offences.
what is the burden of proof (criminal)?
Refers to the responsibility of a party to prove the facts of a case and it lies with the person bring the case ie. the prosecution. This is because they’re the one initiating the case so it makes sense that it’s their obligation to establish the facts
what is the standard of proof (criminal)?
The strength of evidence required to prove a case. Ie. in a criminal case the prosecution must prove it beyond reasonable doubt. This means any average person should not have any rational doubt as to the guilt of the accused. Ie. No other logical or reasonable conclusion can be reached based on the evidence presented
what is the presumption of innocence?
An old common law right backed by the Charter of Human rights. Every accused person is assumed to be innocent until they have been proven guilty beyond reasonable doubt in the court of law
Accused doesn’t need to prove they aren’t guilty and instead needs substantial evidence to be convicted (burden and standard of proof) and a bail system. However, realistically most defendants don’t properly receive presumption of innocence. Police are often given the benefit of the doubt in jury cases. As well, remand may mean they don’t get the opportunity to properly prepare their case as right is denied.
what is the right to be tried without unreasonable delay?
Anyone charged with a criminal offence is entitled, without discrimination, to a guarantee that he or she will be tried in a timely manner and that delays will only occur if they are considered to be reasonable.
Factors like the complexity of the case and legal issues involved are considered in determining the reasonableness of a delay.
Eg. If there were multiple crime scenes and accused with few witnesses, a longer delay would be okay as the prosecution needs more prep time. But if there was only one crime scene, with multiple witnesses, a long delay would be unreasonable.
what are three strengths of the right to be tried without unreasonable delay?
reduces uncertainty for accused as swift justice instead of drawn-out process (A)
no degradation of evidence (A,F)
Lessens emotional strain on accused as they can get back to their lives quicker (F)
what are three limitations of the right to be tried without unreasonable delay?
Hard to find balance between ensuring all accused are tried without unreasonable delay and ensuring prosecution and defence have enough time to gather evidence and prepare their case to ensure a fair hearing. (F,A)
don’t want to rush case and miss important facts (A,F)
Sometimes, there are large backlogs of cases, particularly in lower courts like the Magistrates. (A)
what is the right to a fair hearing?
Anyone charged with a criminal offence is entitled by the Human Rights Charter to have the charge decided by:
A competent, impartial court. Ie. by a qualified and experienced judge or magistrate in an unbiased and objective matter, after a;
Fair, public hearing ie. Hearing is open to the public so trials and processes are transparent and the public knows laws are being applied properly.
what is a strength of the right to a fair hearing?
Judges are expert and impartial. Can enforce rules of evidence and procedure so only relevant evidence is introduced. Example of prior charges inadmissible as evidence. (F,E)
what is a limitation of the right to a fair hearing?
May conflict with victims rights to alternative arrangements. Eg. victims of criminal acts of violence can be exempt from being cross examined so the accused does not get to test the strength of evidence. Eg. Some vulnerable witnesses can have the court closed to the public while giving evidence. (F,E,A)
what is the right to a trial by jury?
Protected by the Australian Constitution and partly by statute law. Any person charged with a commonwealth indictable offence where they plead not guilty, is entitled to have their case heard by a jury (made of 12 people).
what are four strengths of the right to a trial by jury?
Issues of fact and law are determined by peers. Judged from the perspective of the common person (E)
Minimises the power of the state (E)
Spreads the decision making (A)
Greater protection of the rights of the accused as unanimous/majority jury likely to be correct (F)
what are five limitations of the right to a trial by jury?
Numerous people are not eligible to be on jury service which may hinder how representative a jury actually is (F,A)
Jurors are not legal experts so they may struggle to put aside biases and external factors, or be influenced by the media. (F,E)
Also limited as juries are only guaranteed in indictable offences, not summary offences at the magistrates court (A)
Juries don’t have to justify judgement so no way to ensure process is free from bias, unlike judges (F)
Made up of people who don’t work in the system. Gaps in knowledge could unfairly influence the verdict (F)
what is a vulnerable witness?
someone required to give evidence in a criminal case who is considered to be at risk when giving evidence as their circumstances may make them uncomfortable, distressed, embarrassed, or intimidated.
Eg. a child, a person with a cognitive impairment, or a victim of a sexual offence.
Their main protection comes from the Criminal Procedure Act which allows for alternative arrangements to be put in place when a witness gives evidence. Thus making it less stressful and traumatic to give evidence.
what are alternative arrangements (right to give evidence as a vulnerable witness)?
Alternative arrangements are used in criminal proceedings for eg. sexual offences, family violence offences, and an offence for threatening behaviours. They include:
Using screens to remove the accused from the victims direct line of vision.
A support person may be chosen by the witness
Having court closed to the public while evidence is given (although this may conflict with rights to a fair and public hearing).
Court can declare a witness a protected witness for a sexual or family violence offence meaning they mustn’t be cross examined by the accused (however, this could conflict with accused right to a fair hearing).
what are two strengths of the right to give evidence as a vulnerable witness?
Appropriate access to give evidence in court, and not deterred from pursuing justice (A)
Protects from re-trauma/secondary trauma so vulnerabilities aren’t exacerbated and rights of the accused don’t predominate. Careful consideration to level playing field and minimise disadvantage (E)
what are four limitations of the right to give evidence as a vulnerable witness?
Having court closed can conflict with accused rights to a fair and public hearing (F,A)
Being unable to cross examine may interfere with accused rights to fair trial as they can’t test strength of evidence (F,A)
It is still traumatic to give evidence, especially twice with both committal proceedings and at trial. (F)
Jury may be prejudiced by different conditions to give evidence (sympathy, or doubting reliability) (F)
what is the right to be informed about the proceedings?
Victims are entitled to certain information about the proceedings and the criminal justice system. Investigatory agencies and victims services (eg. police, DPP, Victims of Crime Commissioner) are obligated to provide clear, timely, and consistent information regarding the investigation of the offence and the prosecution of the accused. The Victims Rights Charter entitles victims to:
Be told by police about progress of investigation of the offence and if the investigation may out the victim at risk
Have court processes be explained to them
Be told about the prosecution of the accused eg. details of the charges laid, and if no offence is charged, why; court dates, locations and times of hearings; the outcomes of any proceedings and sentences; and details of any appeals
what are two strengths of the right to be informed about the proceedings?
Victims can understand proceedings and navigate with stronger position (A)
Parties at risk of emotional harm from seeing the perpetrator are better supported if given information relating to details of any appeal, outcome of proceeding so not re-traumatised (E)
what are two limitations of the right to be informed about proceedings?
May intrude on a convicted person’s right to privacy after serving sanction imposed by the court, compromising their right to equal treatment (E)
Can be failed in instances where the prosecution doesn’t have time to inform victim of developments such as charges dropped/plea agreements made (A,F)
what is the right to be informed about the release date?
Any individual who is a victim of a criminal act of violence (eg. rape, assault) can apply to be on the Victims Register (ie. a database providing victims with information with information about prisoners eg. the earliest possible release date). Can also tell them the length of a sentence, if the prisoner escapes.
This can help them cope with the effects of the crime knowing their perpetrator is in jail for a period of time. However, they may feel the sentence was too light, or live in fear as the date of the offender’s release is revealed
what is the role of VLA?
Provide legal aid
Ensure coordination of legal aid and assistance so as to respond to community needs
Control and administer the Legal Aid Fund
Make recommendations about law reform
Design and implement educational programs
what is VLA?
a government agency that provides free legal advice to all members of the community and low or no cost representation. Aims to create a fair and just society where socially and economically disadvantaged victorians can receive assistance with legal problems
what types of legal aid does VLA provide?
Free legal info: VLA website has free publications and resources, info about cases, and a public law library.
Free legal advice:in person, over the phone, video conference. Focused for in person advice for most disadvantaged eg. homeless, children, indigenous australians, those in custody.
Free duty lawyer services: VLA lawyers who are at court on a specific day can give fact sheets, offer legal advice, represent an accused.
Grants of legal assistance: may grant assistance to those who can’t afford a lawyer. Eg. advice, preparing docs, presenting in court. Only available to those who pass the means test and if the case is considered to have merit.
what are five limitations of VLA?
Duty lawyers are only available in Mag or children’s court and not available for indictable offences.
Legal advice and legal representation from duty lawyers are only for people who satisfy the income test.
Duty lawyers are often limited on the time they can spend with a client.
Legal assistance grants are only available to those who pass the means test and if the case is considered to have merit.
VLA has very limited funding, which results in a tight eligibility criteria (must satisfy income and means test; considers the benefits of providing representation to an accused; and benefits of the public). This means there is a ‘missing middle’ that can’t get access to legal aid but also can’t afford representation.
what are CLC’S?
Independent community organisations that provide free legal services to members of the public. They play a significant role in assisting economically, socially, and culturally disadvantaged Victorians.
Generalist CLC: provide broad legal assistance in a particular location.
Specialist CLC: focus on a particular group of people or an area of law.
what is the role of CLC’s?
Basic legal info on a day to day basis
Initial legal advice such as preliminary assistance, help with writing letters; phone advice
Duty lawyer service for cases that will be completed in one day
Legal casework: very rarely, will take on a criminal matter, representation and assistance. May only matter if the accused is eligible for a grant of legal assistance from the VLA. Many do not offer for indictable offences.
what are three limitations of CLC’s?
Many only offer legal advice and representation in certain areas of law (eg. injury civil claims or family law).
CLC’s will often only represent accused persons for minor criminal matters or straight forward criminal cases. Thus, people accused of more serious crimes are unlikely to receive much assistance from CLC’s.
There is a limited number of CLC’s in rural and regional Victoria meaning many may struggle to access them.
what are two differences between VLA and CLC?
D1. VLA are government organisations whereas CLCs are independently run.
D2. VLA provides free or low cost representation whereas CLCs generally just do free advice and info and cannot provide ongoing casework.
what are three similarities of VLA and CLC?
S1. both offer free advice to all members of public
S2. While CLC are independent, they do receive some government funding through VLA.
S3. Both’s central aim is to make the legal system more accessible for socially and economically disadvantaged people.
what are five purposes of committal proceedings?
outlined in the CRIMINAL PROCEDURE ACT
See whether the offence is appropriate to be heard and determined summarily.
Decide if there is sufficient evidence for a conviction at court
Find out if the accused is planning to plead guilty or not guilty.
Ensure a fair trial by: making sure the case is disclosed to the accused so they can adequately prepare; giving accused the opportunity to see evidence and cross examine; and by making sure issues are properly defined.
To save time and resources if the higher courts by clarifying any disputed issues before the trial.
what is a committal proceeding?
a pre-trial procedure that takes place in the Magistrates’ Court in cases where the accused has been charged with one or more indictable offences, and has pleaded not guilty. Involves a number of stages and preliminary hearings in the Magistrates’ Court that act as a filtering process to test the strength of the prosecution’s case before a full trial occurs to determine guilty.
what are plea negotiations?
Pre-trial discussions between the prosecution and accused aimed at resulting in an early determination of a case by agreeing on the charges.
what are three possible outcomes of plea negotiations?
Accused pleads guilty to fewer charges and others don’t proceed.
Accused pleads guilty to a charge but an agreement is reached about the facts on which the plea is based
Accused pleads guilty to a lesser charge eg. culpable driving to dangerous driving. Eg. an accused charged with murder may agree to plead guilty to manslaughter.
what are four purposes of committal proceedings?
Save time and resources: Aims to achieve a prompt resolution of a case without the cost, time, stress, and inconvenience of a trial. An early guilty plea expedites a case and thus saves the courts, prosecution, and the accused a significant amount of time and resources as they don’t have to allocate them to the trial. Additionally, this inadvertently reduces court backlogs.
Save money: accused does not have to pay for legal representation needed for a full trial. The prosecution is also saved money,
Provide a degree of certainty: when an accused pleads guilty, both the prosecution and accused are able to avoid the uncertainty that comes with a trial, and whilst the exact sentence is unknown, they are aware of the max sentence.
Prevent harm to the victim: any victims and witnesses are spared the stress and trauma of having to give evidence.
what are three instances in which a plea negotiation may be appropriate?
May be appropriate when the prosecution’s case relies on the testimony of a victim who is reluctant to testify, or who may suffer emotional trauma from giving evidence. In such cases a plea negotiation would prevent any further harm to victims while also ensuring the accused is found guilty of an offence,
When the offender is young and has no criminal background
Cases with several mitigating factors.
what are three instances in which a plea negotiation may be inappropriate?
If the accused committed a crime that is so severe that it warrants a very severe sanction.
If the accused shows little remorse
If the prosecution believes that it is in the public best interest for the accused to be imprisoned for a very long time
