U3A1 part 2 lesson 1 Flashcards
definition of judge
an independent authority who presides over a trial, ensuring procedural fairness by overseeing all personnel and evidence
definition of mag
an independent authority who presides over hearings in the Magistrates’ court for less serious matters such as summary offences, committal proceedings and, some civil disputes
features of judge + mag
jury directions
types of offences
sentencing
features of judge: jury directions
Judges must follow the jury directions act 2015 to ensure the jury understands the law and evidence presented
features of judge: types of offences
Judges hear and determine indictable offences such as homicide and sexual assault fences
features of judge: sentencing
Judges have more discretion than Magistrates when it comes to the length of sentences and the types of sanctions imposed
Bcs judges are appointed to the higher courts based on their expertise and are expected to exercise their judgment and discretion in accordance with the law and legal precedents
features of mag: types of offences
here and determine summary offences such as traffic offences and minor criminal offences
have authority to conduct preliminary hearings in criminal cases, bail applications, sentencing warrant application
features of mag: sentencing
bound by legal precedent bcs they are the lowest
features of mag: jury directions
no jury so judges don’t follow the jury directions act 2015 to ensure the jury understands the law and evidence presented
the magistrate determines the verdict and their sentence
role of judge/mag
manage trial
direct jury
determine verdict (mag only)
sentencing
role of judge/mag: manage trial
- Ensuring that court procedures are followed; both parties have the same opportunity to present their case in
- Asking clarifying questions of witnesses, calling new witnesses / Limiting examination-in-chief + cross examination to protect witnesses, and conserve court time by focusing on relevant issues and preventing misconduct.
- Adjourning - taking breaks- in the trial to ensure that there is no disparity e.g., if a witness was showing signs of distress and continuing to testify may lead to inaccurate information
role of judge: direct jury
ensure a fair trial - informing the jury that the accused is not required to give evidence, reinforcing that the jury needs to apply the elements of the law
Explaining legal definitions to the jury e.g., the law that applies to the facts
role of judge/mag: sentencing
- If an accused is found guilty, the parties will make submissions for sentencing
- The judge must follow the Sentencing Act 1991 (Vic) and comply with legislation
- The judge must factor in aggravating, mitigating and victim impact statements should there be one to ensure procedural fairness in sentencing
- The judge will also consider Victim Impact Statements (VIS) when deciding the severity of the sanction
role of mag: determine guilt of accused
(Mag’ only/judge alone trials) Determine whether the accused is guilty based upon the evidence presented by the police prosecution
strength of judge: independence
An independent, impartial judge/mag. Ensures that the trial and court procedures are conducted fairly, without bias and according to the rules of evidence and procedure
strength of judge: protect victims
Judges and Mag’ can apply court rules to protect victims, providing access for vulnerable witnesses to safely give evidence.
Some of these are contained in the Jury Directions Act (2015).
strength of judge + mag: experienced
Judges + Mag’ are experienced professionals who are well versed in the law + court procedures. This ensures that rules and procedures are correctly applied so that both parties receive equal opportunity to present their case.
weakness of judge: explaining
Judges can only explain court procedures and legal terminology to parties, they cannot provide additional legal advice or information to a self-represented party which can increase the likelihood of an unfair trial or self-represented individuals due to the complexities and formalities of criminal trial.
weakness of judge: impartial
While judges and Mag’ are impartial judicial officers, they are still human and as such subject to personal bias and therefore may subconsciously discriminate against parties hindering equality
weakness of judge: legal rep
Judges + Mag’ rely on the parties to present all relevant evidence during trial. If an accused has no access to legal representation, this may prevent all relevant facts from being disclosed.
unable to sit jury (ineligble)
following individuals are ineligible to serve:
* Those who have committed indictable offences
* Lawyers
* Police officers
* Judicial officers
jury definition
a group of randomly selected people from the electoral roll who are required to deliver a verdict in a trial based upon the evidence presented to them in court.
In criminal trials, a jury of comprised of 12 jurors who act as a cross-section of the community.
what jurors cannot do
- Conduct personal research
- Discuss the trial with anyone else - including family,
friends, except fellow jurors when inside the jury room - View extraneous information about the case in the news, media or on social media
- Have relations with either party
role of jury
remain objective
listen and consider evidence presented
determine verdict
role of jury (Remain objective)
- Juries must remain independent + unbiased towards both parties
- Potential jurors who believe they cannot remain impartial must alert to the court to excuse themselves
role of jury: Listen + consider evidence presented.
- Be alert during trial
- Take notes if needed to keep track of information during trial
- Listen to directions given by the judge including explanations of key legal concepts
- Apply the law
- Participate in deliberation
role of jury: Determine a verdict:
*Consider only the evidence presented to reach conclusion
* Listen to other jurors during deliberation
strength of jury: fairness
A trial by one’s peers protects democracy, ensuring that verdicts reached reflect society’s values. This promotes a fair trial as views of the community are accounted for.
strength of jury: transparency + accountability
Having 12 people from the community also upholds transparency and accountability of the criminal justice system. This ensures that members of the court act in a professional manner but also provides insight for the community as to the operation of the justice system.
strength of jury: equality
All accused who are charged with indictable offences are entitled to a trial by jury regardless of their wealth, race, or education. This promotes equality.
weakness of jury: ineligible
Several groups in society are ineligible/excused or disqualified from jury service. Therefore, there can never be a true cross-section of the community.
weakness of jury: complex and technical
Criminal cases can be complex + technical. This can make it difficult for the ordinary person to fully understand legal terminology and procedures. This creates a risk of unfair verdicts as there is no guarantee that jurors understand the facts and evidence presented.
weakness of jury: delays
The use of juries can cause delays since jury members must be empanelled, evidence and legal terminology must be explained, and deliberations need to occur.
In the balance of a hung jury or mistrial due to juror misconduct, a re-trial is required.
Delays can limit the accused’ access and contribute to backlogs of cases.
Hung jury = cannot reach unanimous verdict or majority
