U3 Sac1A Flashcards
Burden of Proof
The responsibility of a party to prove a case. In a criminal case it lies with the prosecution.
Standard of Proof
The degree or extent to which a case must be proved in court.
Parties in a criminal case
The prosecution- The party that presents the evidence in court on behalf of the state and against an accused person.
The accused- The person charged with the crime, there can be multiple accused.
Committal Proceedings
The pre-trial hearings and processes held in the magistrates court for indictable offences.
A committal hearing will be held that will determine whether there is enough evidence to support a full conviction trial.
Summary Offence
A minor crime generally heard in the magistrates court.
E.g. Drink driving and minor assaults.
Indictable Offence
A serious crime, examples include homicide offences, sexual offences, some theft crimes and drug trafficking.
Heard before a judge and jury in the supreme and county court.
The presumption of innocence.
The right of a person accused of a crime to be presumed not guilty unless proven otherwise.
The rights of an accused
The right to silence.
The right to a trial by jury.
The right to be trialed without unreasonable delay.
The right to silence
Different types of protections given to an accused person to not have to say or do anything.
Including the right to not answer questions or give information. The accused cannot be forced to give evidence. An accused person has the right to remain silent and no negative conclusions can be drawn from remaining silent.
The right to be trialed without unreasonable delay.
A person charged with a criminal offence is entitled to a guarantee that they will be tried without unreasonable delay. entitled to have their charges heard in a timely manner and that delays should only occur if they are considered reasonable. Everyone is entitled to this right regardless of prior convictions.
The right to a trial by jury.
A person charged with an indictable offence is entitled to be tried by their peers. The jury will be made up of 12 members of the community.
Rights of victims
The right to give evidence using alternative arrangements.
The right to be informed about the proceedings.
The right to be informed of the likely release date of the offender.
The right to give evidence using alternative arrangements.
Where going to court may cause distress or trauma so alternative arrangements are made.
These arrangements include witnesses providing evidence from a place other then the courtroom. Screens to remove the accused from the witnesses line of vision, a support person may be able to be present when the witness gives evidence, this support person must be approved.
These alternative arrangements can be provided in cases involving a sexual offence, a family violence offence, a sexual exposure offence, an obscene behavior in public offence.
The right to be informed about the proceedings.
People affected by the crime should get certain information about the proceeding.
The prosecution is required to provide the following information…
-Details of the offence charged against the accused.
-If no offence is charged, the reason why.
-The outcome of the proceeding.
-Details of any appeals.
The right to be informed of the likely release date of the offender.
A person who is a victim of a criminal act of violence may apply to be included on the victims register. Once registered they will receive information about the offender including…
-The right to know the length of the sentence.
-The right to be told if the offender escapes prison.
-The right to make a submission if the imprisoned offender may be released on parole.
Fairness
All people can participate in the justice system and its should be impartial and open.
Equality
People should be treated the same way, but if the same treatment creates disparity or disadvantage, adequate measures may be taken to ensure the justice system remains without disparity or disadvantage. This includes the implementation of interpreters for people who don’t speak English.
Access
All people should be able to engage with the justice system and its processes on an informed basis.
The role of VLA in assisting an accused.
-Free legal information for all accused.
-Free legal advice in person or over the phone. Access depends on the accused persons income.
-Duty lawyer services who can help people in court for a hearing, they can offer advice and information or represent the accused.
-Grants of legal assistance to people who cannot afford a lawyer. Given to the people who need it the most, accused people must meet the means test, it takes into account the accused income, assets and expenses.
How VLA can assist victims of crime.
-Providing free legal information about the law, court processes and basic legal principles to all victims.
-Free legal advice on how to apply for financial assistance or get compensation from the offender.
-Duty lawyer services that provides all basic legal information and may represent the victim, available to who needs it the most.
-Grants of legal assistance.
VLA strengths and weaknesses
Strengths-
-Free legal information is available on VLAs website which is accessible by anyone.
-Free legal advice and assistance through duty lawyers eligible to people most in need.
-Legal information is provided in more than 30 languages.
-VLA uses online tools to provide legal information.
Weaknesses-
-The free legal information on the website is limited and might not be enough for some people.
-VLA does not have unlimited resources.
-VLA is limited by its budget which means fewer people may be eligible for legal aid.
The role of CLCs
Independent organizations that provide free legal services, including advice, information and ongoing assistance and representation to people who might not be able to access legal services in any other way.
Provide-
-Basic legal information.
-Legal advice and assistance.
-Ongoing casework.
-The type of legal matter the person needs help with.
CLCs will consider…
-whether other assistance is available.
-whether the person has a good chance of success.
-whether the CLC is available to assist.
The purposes of plea negotiations.
-Saves costs, time and resources because if an early guilty plea is reached it saves the need for a trial or hearing.
-Ensures certainty of the outcome due to the accused pleading guilty.
-Saves stress and trauma for the victims as it relieves witnesses and victims from having to relive trauma and present evidence.
The appropriateness of plea negotiations.
-Whether the accused is willing to cooperate in the investigation or prosecution of co-offenders.
-The strength of the evidence including the strength of the prosecutions case and of any defenses.
-Whether the accused is ready or willing to plead guilty.
-Whether the accused is self-represented.
-Whether the witnesses are reluctant or unable to give evidence.
-The negative consequences of a full trial, including costs and stress of victims.
Plea negotiations strengths and weaknesses.
Strengths-
-Help determine a case quickly.
-Victims and witnesses are saved the trauma and distress of a trial process.
-Saves the cost and time of a full hearing.
-Provides a certainty of outcome for both parties.
Weaknesses-
-A self represented party may feel pressured into accepting a deal.
-There may be a failure of one or both parties to engage to try to resolve the charges.
-Negotiations dont need to be disclosed and are held privately. This could lead to questioning the agreement.
Reasons for the Victorian court hierarchy.
Specialization- It enables courts to develop their own areas of expertise and specialization in the law.
Appeals- an application to have a higher court review a decision made in a lower court. Occurs when a party is dissatisfied with the outcome.
The role of VLA
VLA is a government agency that provides free legal information to the community, and legal advice and representation for people who cannot afford a lawyer.
Who are duty lawyers available to.
Duty lawyers are only available in the magistrates court and are not available for indictable offences.
Duty lawyers are available depending on whether the accused satisfied the income test. This is satisfied when the accused proves the have a limited income.
Plea negotiations
Pre-trial discussions between the prosecution and the accused about charges against the accused.
-Aimed at resolving the case by agreeing to an outcome to the criminal charges.
-A plea negotiation will occur when indicated by an accused or their lawyer that they will like yo discuss charges.
