U3A1 part 2 lesson 3 Flashcards
prosecution
the party that acts on behalf of the Commonwealth or state and brings a criminal case to court
accused
the party who is charged with a criminal offence.
two individuals who are accused of committing a joint offence = co-accused.
role of prosecution
calling witnesses
present evidence
role of prosecution: calling witness
- Call all relevant witnesses not just those who will support their case and gain guilty verdict e.g., the prosecution cannot decide against calling a witness to a crime because their evidence may lead the jury to have doubt about the accused’ guilt
- Examination in chief -the questioning of a witness in court by the party who called that witness to give evidence
- Cross- examination -the interrogation in court of the opposing party’s witness who has already testified to check or discredit the witness’ evidence
role of prosecution: present evidence
•Present relevant and admissible evidence to prove the guilt of the accused beyond a reasonable doubt e.g., medical reports, photographs, video recordings, text messages, emails
role of the accused: enter a plea
enter a plea
present evidence and call witnesses
role of the accused: enter a plea
- The accused must plead guilty/not guilty to the charges against them. This can be performed at any time prior to the trial/during trial provided that a verdict hasn’t been achieved
role of the accused: present evidence and call witnesses
- The accused is not required to present evidence - they do not have the burden of proof and have the right to silence
- However, they may choose to do so as this can assist in disproving the prosecution’s case by providing evidence + questioning of witnesses to contradict the prosecution’s arguments
need for legal representation under sec 167
Section 197 of the Criminal Procedures Act 2009 (Vic) establishes that a court has the power to adjourn a trial until legal representation has been provided for the accused, if the court is satisfied that the accused will be unable to:
* Have a fair trial without legal representation
* Afford the full cost of private legal representation
legal representative play a crucial role in the criminal trial as they prepare cases and bring them to court on behalf of the parties.
solicitor
In most cases, an accused who has been charged with a crime will firstly seek the guidance of a criminal solicitor.
Solicitors = a lawyer who:
- advises clients about legal matters
- prepares legal documentation for trial
- communicates with the other party’s legal representatives
- researches the relevant laws and, if required
- engages the services of a barrister and briefs them to represent a client in court
barrister
Barrister = usually a self-employed lawyer who regularly appears in court and is responsible for representing a party in a trial through:
- Making legal arguments
- Questioning of witnesses
- Summarising the case to the judge/jury
reason for legal representation
ensure an accused understands legal proceedings
help an accused to receive a fairer outcome
provide objectivity
reason for legal representation: ensure an accused understands legal proceedings
The Criminal Procedure Act 2009 (Vic) sets out the process of criminal proceedings in Victoria and with the assistance of legal representation, an accused can understand:
- How a criminal proceeding is commenced
- Committal proceedings
- How to submit a plea
- The manner in which evidence must be presented
- How to appeal a criminal conviction
Criminal proceedings may be difficult to comprehend for those with limited knowledge of the law.
reason for legal representation: help an accused to receive a fairer outcome
A criminal lawyer who is experienced with previous, similar criminal cases can build a more compelling defence against the prosecutions’ accusations.
By receiving a tailored defence to their case, a represented accused may be able to access fairer outcomes than a self-representing individual with limited experience in law. This can ensure:
- An innocent accused is not wrongfully found guilty.
- An accused found guilty receives an adequate sanction that, in some cases, may be less severe, as a lawyer can argue that certain mitigating factors apply in the case.
- An accused can appeal their conviction or sentence if they feel they were wrongly found guilty or inappropriately sentenced, as the appeals process can be complex, and an accused may be unable to navigate it themselves
reason for legal representation: provide objectivity
An accused person, who is personally involved in the case, may struggle to view the evidence against them objectively.
However, a legal practitioner has a greater ability to look at the facts of the case from an impartial point of view, allowing them to identify weaker or stronger points in the prosecution’s evidence against the accused.
This can allow a stronger defence case to be built without the interference of emotions.
