U3 Sac1B Flashcards
The role of the Judge
Act Impartially-
-Judges must remain unbiased and there should be no apprehended bias.
Manage the trial or hearing-
-A judge has the duty of supervising the case. This includes…
-Ensuring procedure is followed.
-Ask occasional questions.
-Make decisions during the trial.
-Adjust processes if necessary.
Oversee the outcome of the case-
In the county and supreme court, the jury decides the quilt not the judge. They oversee the decision via giving directions, summarizing the case to the jury.
Sentence an Offender-
-If an accused is found guilty or pleads guilty the case will set down for a plea hearing, this is where the judge will hand down a sentence.
Apprehended Bias
A situation in which it is believed that the person hearing or deciding a case, might not bring an impartial mind to the case.
The role of the jury
In a criminal trial a jury has the following roles-
-Be objective (unbiased and open minded)
-Listen to and remember the evidence.
-Understand directions and summing up given by the judge.
-Deliver a verdict.
The role of prosecution
Disclose information to the accused) they must inform the accused of all evidence that will be used against them, including names and statements by witnesses.
Participate in the trial or hearing) The prosecutor must present the case. This includes…
-Presenting opening address
-Present supporting evidence including calling and examining witnesses.
-Cross examine any witnesses called by the accused.
-Make a closing address.
Make submissions about sentencing) If the accused pleads guilty or is found guilty, the matter will be set down for a plea hearing, the duty of the prosecutor is to assist the court in determining the sentence.
The role of the accused
The role of the accused is different, they do not have the burden of proof, therefore can remain silent during the entire case. However they have to…
Participate in the trial or hearing) if they choose to, they can present a defense where either themselves or their legal practitioners present an opening address, present evidence that supports the case, cross examine, and making a closing address.
Make submissions about sentencing) The offender or their legal practitioners will try to obtain the least possible sentence available while making submissions about sentencing.
Plea Negotiations
Pre-trial discussions between the prosecution and accused aimed at resolving the case by agreeing on an outcome to the criminal charges laid.
Fairness
All people can participate in the justice system and its processes should be impartial and open.
Equality
All people engaging with the justice system and its processes should be treated in the same way. If the same treatment creates disparity, measures must be taken to ensure everyone can engage without disadvantage e.g. interpreters.
Access
All people should be able to engage with the justice system and its processes on an informed basis.
The need for legal practitioners in a criminal case.
Reasons for lawyers…
-A person representing themself lacks knowledge and skills of the legal system.
-A self represented person may not have the objectivity to make the right decisions. They could be overly invested.
-It avoids the risk of the accused directly questioning the witnesses which could bring up trauma.
Impact of costs on POJ
There are many costs involved with the criminal justice system. e.g.
-The cost of legal representation, while everyone has the right to representation, not everyone can afford it, this can effect Equality and Access. However can be fixed through the use of VLA or CLCs.
Impact of time on POJ
The more complicated a case is the longer it is more likely to take to be ready for trial. This effects the POJ of access. Measures that can be taken include, plea negotiations which can reduce delays by achieving an early guilty plea.
Impact of cultural differences on POJ
There are many different difficulties faced by first nations people in the criminal justice system. This includes…
-Language Barriers
-Body language, direct eye contact may be considered disrespectful.
-Lack of understanding of procedures.
These can heavily affect the POJ of fairness and equality so measures may be taken to ensure they have the same opportunity, for example an interpreter or the Koori court.
The Koori Court
A measure put into place to address challenges faced by first nations people is the Koori court. It is a division of the Magistrates court and County court. It is a sentencing court.
The sentencing process at the Koori Court is informal and conducted in culturally appropriate ways. Instead of sitting behind a lawyer they are able to tell their story with family and elders.
The courts are also smoked beforehand and decorated by indigenous art.
To be eligible for the Koori court, the offender needs to be first nations, they must plead guilty, and they must live within or have been charged within a relevant area of the koori court.
Additional measures that are available for first nations people other then the Koori court include…
-free interpreters to accused people.
-Information provided by courts, VLA or CLCs.
Purpose of Sanctions- Specific Deterrence
When the court seeks to discourage a particular offender from engaging in criminal activity in the future. An important factor in specific deterrence is prior convictions, if having had committed crimes in the past means they may be at risk of reoffending, specifically deterring the offender may be a high priority.
Mitigating Factors
Facts or circumstances about the offender or their offence that may lead to a less severe sentence. This includes…
-The offender showed remorse.
-Offender has no prior convictions.
-The offender acted under duress.
-The offender has showed effort towards rehabilitation.
-The offender pleaded guilty early.
-The offender was young or disabled.
Aggravating Factors
Facts or circumstances about an offender or their offence that can lead to a more severe sentence. This includes…
-The use of violence when offending.
-If offending was premeditated.
-Vulnerabilities of the victim that may include disability or old person.
-The nature and gravity of the offence (involved family violence or the offence was unprovoked.)
-Offender was motivated by hatred or prejudice.
-Offence took place in front of children.
-A breach of trust by offender , e.g. family or teacher and student offence.
-Prior convictions.
Purpose of Sanctions- Rehabilitation
Rehabilitation is designed to reform an offenders attitude or behavior in order to prevent them from committing offences in the future. For rehabilitation to be relevant in sentencing the offender must show remorse. Rehabilitation may include life skill programs that will help offenders once released.
Purpose of Sanctions- Punishment
An offender might have done something unacceptable to society, and they must be penalized so that the victim and overall community feel justice has been achieved. Often punishment occurs in serious or violent cases such as those involving death or sexual offences.
Sanctions that aim to punish include prison or fines.
Purpose of Sanctions- general deterrence
General deterrence aims to discourage others in the community from committing the same or similar offences. Important in violent or sexual offences. General deterrence is achieved when people are aware of the sentence imposed for the crime.
Purpose of Sanctions- denunciation
Denunciations refers to the courts showing their disapproval for the offence. A sanction may be handed to show the community that the court and society disapproves of and condemns the offenders actions. AN example is a judge might hand out an extra harsh punishment to show this behavior wont be tolerated.
Purpose of Sanctions- Protection
Protection ensures that the community is safe from any further harm that can be caused by the offender. Sometimes it may be necessary to remove an offender from the community (put them in prison) to achieve this aim. Relevant in cases where there is no remorse or the offender has significant criminal history.
Fines and their specific purposes
A fine is an amount of money ordered by the courts to be paid by the offender to the state of Victoria. It can be imposed as the sole sanction or added on to another.
The two main purposes of imposing a fine are punishment and deterrence, denunciation may also be achieved when fining an offender. Rehabilitation and protection are less relevant for fines.
CCOs and their specific purposes
A CCO is a supervised sentence served in the community. A CCO may only be imposed of the offender is found guilty of of an offence punishable by more than 5 penalty units.
Conditions attached to CCOs…
-Must not commit another offence during this period.
-Must report to a community corrections center.
-Must report to and receive visits from a community corrections officer.
-Must not leave Victoria without permission.
at least one additional condition is also required, these may include…
-Unpaid community work.
-Treatment and rehabilitation.
-Place or area exclusion.
-Curfew.
Purposes of CCOs…
a CCO can achieve all the purposes of sanctions, deterrence, rehabilitation and denunciation are often achieved but protection and punishment could also be achieved.
Imprisonment and its specific purposes
People who are convicted of crimes, usually more serious, can be sentenced to imprisonment. They will be removed from society and have to spend time in prison.
Prison terms are expressed in levels from 1 to 9, 1 being the most serious (Life Imprisonment) This could come from murder or drug trafficking. 9 being the lowest level (6 months) coming from merely concealing the birth of a child.
Purposes of imprisonment…
-The primary purpose of imprisonment is punishment, protection, deterrence and denunciation, rehabilitation can be achieved in some cases but is however less of a concern for imprisonment.
guilty pleas
One of the factors courts may consider when sentencing an offender is whether the offended pleaded guilty to the offence and if so, how early they did so.
An earlier guilty plea that occurs before trial or at the start of trial may be considered a mitigating factor. The earlier a guilty plea occurs the more significant the benefits for the criminal justice system.
Victim impact statements
When sentencing an offender the courts must consider the impact the offence had on victims.
A victim impact statement is made by the victim and goes in to the injuries, loss or damaged suffered by the victim as a result of the offence.
They are used to help determine the degree of the sentence and allows victims to have a say in the outcome of the case.
Burden of Proof
The responsibility of a party to prove a case. In a criminal case the burden of proof lies with the prosecution.
Standard of Proof
The degree or extent to which a case must be proved in court. In a criminal case it has to be proven beyond reasonable doubt that the offender committed the crime.
The role of the magistrate
The magistrate appears in the magistrates court and has the following roles…
Act Impartially- unbiased.
Manage the Hearing- Magistrates have the important role of ensuring correct procedure is followed. Ask occasional questions of witnesses. Make decisions during the course of the trial. Adjust trial processes if necessary.
Decide the outcome of the case-
In the magistrates court, the magistrate will decide whether the accused is guilty of committing the crime.
-Sentence an offender.
Concurrent Sentence
A sanction that is to be served at the same time as one or more other sentences, usually given in relation to 2 terms of imprisonment. An example of this is where an offender will serve 6 months for theft and 2 years for Assault, served concurrently as 2 years as both sentences are served at the same time.
Cumulative Sentence
Where two sentences are imposed and are to be served one after the other, for example the prisoner will serve 6 months for the theft and then another 2 years for the assault for a total of 2 years and 6 months.
Indefinite Sentence
A term of imprisonment that has no fixed end date, usually given to the most serious offences that include murder, child homicide or rape. The court will review whether the offender should be released into a 5 year rehabilitation program periodically.
Strengths and Weaknesses of Juries
Strengths-
-Jury members are randomly picked, they have no connection to the parties.
-Jury system allows members of the public to participate in the justice system.
-Collective decision making reduces the possibility of Bias.
Weaknesses-
-Jury members may have unknown biases or prejudices.
-Selected jurors may not be able to understand the legal system.
-A number of people cannot participate in the juror system because they are ineligible.
Strengths and Weaknesses of judges and magistrates
Strengths-
-The judge or magistrate acts impartially.
-Judges and magistrates are able to assist self represented accused people.
-Judges and magistrates manage the hearing or trial and its processes.
Weaknesses-
-There’s a risk they have apprehended bias.
-There is a lack of diversity in judges and magistrates.
-Judges and magistrates cannot overly interfere in a case.
Apprehended Bias
A third party might believe that the person hearing a case, e.g. a judge or magistrate, might not be bringing an impartial mind to the case.
