U3AOS1

Question 1

Fairness

Answer 1

People are treated impartially, with adequate opportunity to be heard.
Unbiased decision maker (judge/jury/magistrate) who only acts on evidence, no discrimination, without fear or favour, listens to both sides, reasons for decisions.
Clear and uniform rules of evidence and procedure, rule of law, presumption of innocence, hearing rule, ability to access legal rep and understand court processes/terminology, opportunity to appeal.

Question 2

Equality

Answer 2

All people have the same opportunity to pursue and present their case, without advantage or disadvantage.
Language barrier, resources for legal rep, hearing/vision impaired/disabled people.
No discrimination, even playing field, clear and uniform rules of evidence and procedure, access to legal rep, ability to understand court processes, special procedures (interpreters, Koori Court)

Question 3

Access

Answer 3

People have an understanding of their legal rights and ability to pursue their case.
Information about laws and rights available in a clear and understandable way (incl. different languages), ability to seek legal advice, financial means to get quality legal rep, formality of court proceedings, availability of specialist courts/divisions, opportunity to appeal, delays/backlogs.

Question 4

Summary offences

Answer 4

Minor criminal offences, heard in the MC before a Magistrate. Max 2 years imprisonment for one offence (3 for drug related). Many contained in the Summary Act 1966 (Vic)

Question 5

Indictable offences

Answer 5

Serious criminal offences, heard in the County Court or Supreme Court (TD) by a judge and 12 jurors. Includes common law offences and all offences listed in the Crimes Act 1958 (Vic) unless the Act declares an offence to be a summary offence.

Question 6

Indictable offences triable summarily

Answer 6

When an indictable offence is heard as if it was a summary offence. Only applies to some indictable offences (eg. must have 10 or less years maximum imprisonment). The court must determine that its appropriate and the accused must agree.

Question 7

Burden of proof

Answer 7

Refers to the responsibility/onus of a party to prove the facts of the case. In criminal law, the BoP rests with the prosecution to prove, beyond reasonable doubt, every element of the crime. This is because they have initiated the case, so should be the ones to prove it and it enables the presumption of innocence to exist.
In some instances the BoP is reversed for certain crimes.

Question 8

Criminal-Standard of proof

Answer 8

Refers to the strength of evidence needed to prove the case. Beyond reasonable doubt - doesn’t mean that NO doubt at all exists as to the accused’s guilt. It only means that no reasonable doubt is possible from the evidence presented. It is up to each juror to determine what this means to them, the judge cannot expand on this meaning

Question 9

Presumption of innocence

Answer 9

The legal principle that a person charged with a crime is entitled to be considered not guilty until proven guilty according to law.
It is only by the prosecution having the burden of proof that the accused has the PoI.
The accused is presumed to be innocent unless and until the prosecution can prove every element of the crime against them to the Magistrate or the jury beyond reasonable doubt.
This is because of the large imbalance of resources available to the prosecution v the accused, the belief that it is better to let a guilty person walk free than wrongly convict an innocent person, it seems fair according to ordinary societal values.

Question 10

How the presumption is/isn’t upheld

Answer 10

Upheld: Prosecution has BoP, the standard of proof being high, the system of bail, accused having the right to silence, accused’s prior convictions can’t be revealed during the trial.
Not upheld: When the accused is held on remand, when BoP is reversed, when evidence of past convictions is used as ‘tendency evidence’ in court, possibly in the plea negotiation process.

Question 11

The right to be tried without unreasonable delay

Answer 11

The accused is entitled to have their charges heard in a timely manner with only ‘reasonable’ delays.
The reasonableness of any delays will depend on factors, e.g. complexity of the case and legal issues involved.
Right is found in s 21 and 25 of the VCOHRR.
There are specific time limits created in the Criminal Procedure Act for the start of criminal trials, eg. trials must commence within 12 months of the accused being committed for an offence. May be extended if it is in the ‘interest of justice’ to do so.

Question 12

The right to a fair hearing

Answer 12

Entitles a person charged with an offence to have the charge decided by a competent, independent and impartial court after a fair and public hearing.
Unbiased decision maker, hearing rule, rule of law, presumption of innocence, court hearings open to the public, clear and uniform rules of evidence and procedure.

Question 13

The right to trial by jury

Answer 13

Entitles an accused to have their peers within the community decide whether they are guilty (12 jurors). This provides the opportunity for community participation in the legal process and for the law to be applied according to community standards. This is not protected in the Vic Charter. The Criminal Procedure Act requires a jury to be empanelled for Vic indictable offences and s80 of the Const does so for Cth indictable offences but for Vic summary offences there is no right to trial by jury.

Question 14

The right to give evidence as a vulnerable witness

Answer 14

Vulnerable witnesses are those who can be at risk as a result of giving evidence due to distress or potential secondary trauma.
Not defined in the Criminal Procedure Act, but generally includes children, victims of sexual offences, etc.
There are various protections available to witnesses listed in the Criminal Procedure Act. EG. Screen protectors, video conference testimony

Question 15

The right to be informed about the proceedings

Answer 15

Available to anyone who is a ‘victim’ under the Victims’ Charter. Police must inform the victim, at reasonable intervals, about the progress of an investigation unless the information jeopardises the investigation or the victim chooses not to receive it.
The DPP must give the victim the following info:
Details of the offences charged, date time and place of the hearing of the charges, outcome.

Question 16

The right to be informed of the likely release date of the accused

Answer 16

Available to victims on the Victims Register (victims of a criminal act of violence). Victims may receive certain info about an offender who has been imprisoned including their likely release date and release on parole. Info must be provided at least 14 days before the release of the prisoner. Victim has the right to make a submission to the Parole Board about the effect of the offender’s potential release on them and the board must consider this when making their decision.

Question 17

Victorian Legal Aid

Answer 17

Provides free basic/general legal information to the accused (available via website, brochure, telephone to everyone).
Provides free initial legal advice to the accused (available by video conference or phone to people who meet VLA priority guidelines).
Free duty lawyer services (VLA lawyer on duty at MC and Children’s Court can provide specific legal advice to an accused who satisfies the income test and is either facing a significant charge or is a VLA priority).
Provide a grant of legal assistance (a lawyer will run the case and represent the accused, only available if accuseds satisfy the means test and VLA will consider if helping accused can benefit them AND the public).

Question 18

Community Legal Centres

Answer 18

Independent community organisations that provide free legal service to those who need it. Mainly receive funding from the Cth and Vic governments, but are also funded by local councils/universities/other organisations.
Two types: Generalist CLCs - provide a broad legal service to people in a particular geographical location (EG. Monash Law Clinics).
Specialist CLCs - focus on a particular group of people or area of law (EG. Youth Law).

Question 19

Role of CLCs

Answer 19

Provide free basic legal info (some is available online depending on CLC)
Provide free legal advice service - allows people to visit or call CLC without appointment to get initial info and advice
Provide duty lawyers - give advice or representation for urgent matters that will complete in one day. Generally only in the MC for summary offences.
Ongoing legal rep and assistance - very rare for CLC to provide this, esp. for indictable offences. Will have to meet the same eligibility criteria as a grant from VLA.
Assisting an accused to fill out legal forms or documents - EG. an application for assistance from VLA.

Question 20

CLC Eligibility Criteria

Answer 20

CLCs will generally consider three factors:
Whether other assistance is available (EG. VLA)
Whether the accused has a good chance of success
Whether the accused can manage the case without help

Question 21

Specialisation

Answer 21

A court hierarchy allows each court to develop the skills, expertise and processes to deal with particular criminal cases.
The judicial officers of that court can develop a specialised understanding of the law and processes with respect to the common types of offences heard there.
EG. MC is familiar with summary offence cases that need to be dealt with quickly and efficiently(EG. traffic offences) as well as committal proceedings and bail applications

Question 22

Appeals

Answer 22

A party who is dissatisfied with a decision in a criminal case can challenge the decision in a higher court. If there was no hierarchy, there would be no higher courts and no system of appeals could operate.
Appeals are considered a fundamental part of fairness as they allow for any mistakes made in the original decision to be corrected.

Question 23

Committal proceedings

Answer 23

Are pre-trial procedures for indictable offences where the accused has pleaded “not guilty”. They take place in the Magistrate’s Court.

Question 24

Hand up brief

Answer 24

Written document that is prepared by the prosecution which contains important information such as charge sheet, copies of witness statements e..tc. It must be served to the accused 42 days before the committal mention hearing

Question 25

Committal mention hearing

Answer 25

Are preliminary hearings before the final hearing. 30% accused indicate pleading guilty, however if an accused does not plead guilty the magistrate may determine any charges heard summarily, fix a date for committal hearing and determine any issues regarding evidence, cross examine between the two parties.

Question 26

Committal hearing

Answer 26

It is the final hearing, where the prosecution disclose any relevant evidence to the magistrate. Some witnesses may need to appear in person. These days committal hearings are conducted by hand-up brief. At the end of the hearing, the Magistrate will decide if there is evidence of sufficient weight to support a conviction by jury at a trial. If yes then the Accused will be committed to stand trial. If not then the accused is discharged and allowed to go. But if further evidence is found in the future, the accused can be brought before the court again.

Question 27

Purposes of committal proceedings

Answer 27

1. Saving time and resources in the court by:
   - Finding out whether or not the accused plans to plead guilty or not.
   - Filtering out any weak cases that would be unlikely to succeed at trial.
   - Determining whether any indictable offences are appropriate to be heard summarily.
   - Clarify any issues about witnesses or evidence at trial.
2. Ensuring a fair trial by:
   - Making sure the prosecution’s case is disclosed to the accused.
   - Giving the accused an opportunity to hear or read evidence and cross examine witnesses.
   - Allowing the accused to prepare and present their case.

Question 28

Plea negotiations

Answer 28

They are discussions that take place between the prosecution and the accused/their legal representative or lawyer regarding the accused’s plea. It can result in agreement between the two parties about which charges the accused will plead guilty to. For example the accused pleads guilty to fewer charges, with remaining charges not proceeding. For example the accused is charged with three counts of robbery, but only pleading guilty to one of them, in exchange for the other two being dropped. The accused pleads guilty to a lesser charge. Lastly the accused pleads guilty but an agreement is reached about the facts on which the plea is based

Question 29

Purposes of plea negotiations

Answer 29

1. To resolve a criminal case by pleading guilty to a charge, adequately reflects the crime that was committed.
2. To achieve a prompt resolution of the case before trial by the accused pleading guilty. This is good because
   - It saves resources of the court system and reduces delays/backlogs.
   - It saves victims and witnesses from a potentially traumatic trial.
   - It saves the accused of the cost and time of going to trial.

Question 30

Appropriateness of plea negotiations

Answer 30

The accused is willing to negotiate and plead guilty to some charges.
Where giving evidence at the trial would be practically traumatic for the victim/witnesses.
If the prosecution does not have sufficient evidence to prove the more serious charge, it would be appropriate to negotiate a lesser charge.

Question 31

Inappropriateness of plea negotiations

Answer 31

Accused is not willing to participate as they are adamant that they are innocent. As well the accused has a strong defence that they could argue at trial.
Victims don’t want the charges to be negotiated down and want their “day in court”.
If the accused is not represented and therefore might not understand the process of pleading guilty, therefore may feel pressured.
Not in the “public interest” for the DPP to negotiate (e.g. there is substantial evidence to convict the accused at trial).

Question 32

Sentence indications - Indictable offences

Answer 32

Statement given by a judge from the County Court or Supreme Court (Court of Appeal). The accused must apply.
There is no need for the prosecution’s consent however they can oppose the application.
It indicates the type of sentence or the maximum total effective sentence they would give if the accused pleads guilty at the earliest opportunity.
Another sentence indication can be given if there has been a change in circumstances since the previous indication that is likely to materially change the previous indication given.

Summary offences-Given by a Magistrate, at any time. No need for the prosecution consent. Indicates whether an immediate sentence of imprisonment is likely to be imposed or another type of sanction.

Question 33

What are sentence indications

Answer 33

Is a statement made by a judge to an accused about the sentence they could face if they plead guilty to an offence.

A judge can refuse to give a sentence indication. (For example if there is insufficient information about the impact of the offence on victims).
Judicial allocations will be managed by the court rather than the Act.

Question 34

Purposes of sentence indications

Answer 34

To achieve a prompt resolution before a case goes to trial by giving the accused some clarity about the likely sentence, this is good because:
- It saves resources of the court system and reduces delays/backlogs.
- It saves victims and witnesses from a potentially traumatic trial.
- It saves the accused of the cost and time of going to trial.

Question 35

Appropriateness of sentence indications

Answer 35

For indictable offences:
The prosecution does not successfully oppose the application.
Because the length of imprisonment can now be indicated, that way it gives the accused vital information whether or not plead guilty
The accused had applied for one.
If one has been given already, there has been a change in circumstances that is likely to materially affect the previous indication.

For both offences:
There has been sufficient information about the impact of the offence on the victim.

Question 36

Inappropriateness of SI

Answer 36

For indictable offences:
The accused has not applied.
One has been already given and there has not been a change in circumstances that is likely to materially affect the previous indication.
There is insufficient information about the impact of the offence on the victim.
Could encourage a guilty plea in situations where the victims want their ‘day in court’ and believe a guilty plea would result in a lesser sentence than is just given the circumstances of the offending

Question 37

Judge’s roles and responsibilities

Answer 37

The judge acts as the “umpire” in the criminal trial, ensuring that correct procedures are carried out in accordance with the rules and that each party is being treated fairly.
1. Ensuring that correct procedures are followed. It means that judges should make sure that both parties have an equal opportunity to present their case. Example: controlling witnesses, working with legal practitioners. It can order VLA to provide legal representation to ensure a fair trial, by assisting in self represented accused people in understanding court procedures and consequences of certain actions.

However, it is the jury’s role to decide whether or not an accused is guilty, despite the judge being the most knowledgeable in the room. This leads some to argue that the judge’s legal expertise is being underutilised in a criminal trial. The judge cannot overly interfere or advocate for the accused person as doing so risks a re-trial (which means waste of money and court resources).

2. Give directions to the jury based on law and fact and not any biases. Such as telling the jury that the accused is not required to give evidence and that they should not be assumed guilty because he or she did not did not give evidence.

However judges cannot overrule a jury verdict even if it has a different point of view, and jury directions can be too complex therefore risking appeal or mistrials which hindered having clear and informed rules and procedures.

3. Decide questions of law in trial

Question 38

Jury’s roles and responsibilities

Answer 38

A criminal jury has 12 jurors.They are the “decider of the facts”. The jury system provides the opportunity for community participation in the legal system, and for the law to be applied according to community standards. They are NOT involved in sentencing an accused if found guilty.

1. Be objective (putting aside any preconceived ideas or prejudices). Because the jurors are randomly picked and they have no connection to the parties therefore it helps to put aside any preconceived ideas or prejudices.

However, they may inadvertently come across information not presented at trial such as from the media, therefore risking an unfair outcome. And it’s hard to put aside any unconscious biases.

2. Listen to and remember the evidence. They are allowed to take notes, and they cannot make their own inquiries therefore ensuring a fair trial without bias, fear or favour.

However, judges’ directions can be complex or difficult to follow since they have to remember all the evidence which will be hard, and it is very strict upon which they cannot use the internet to search for information, as this can lead to penalties and discharge of the jury.

3. Deliver a verdict based on facts and evidence in the trial. Where they must aim to reach an unanimous verdict for mruder, treason, serious drug offences and other Commonwealth offences. But it can be a majority verdict (11/12) for all other offences. Must make a decision based on the facts, since in criminal cases the jury must decide whether the accused is guilty or not.

However, juries do not give reasons for their verdict/decisions, which can risk an unfair trial if the decision is based on something other than the facts.

Question 39

Parties roles and responsibilities

Answer 39

Since there is an adversarial system in Australia, Parties are in control of how they run the case as long as they comply with their responsibilities and the courts rules, directions and orders.

Key responsibilities of both parties:
1. Give an opening and closing address. The prosecution must give a statement to the jury before any evidence is given in trial. As well as if the accused is legally represented then the lawyer must present to the jury a response to the prosecution’s opening address. Furthermore, both parties are entitled to address the jury to sum up all the evidence after all evidence is closed and both the prosecution and the accused have given their closing address.

Key responsibility of the Prosecution:
2. The prosecution must disclose all evidence known to it, whether or not it is beneficial to their case. The prosecution must assist the court to arrive at the truth.

However, it has the burden of proof, therefore needs to present evidence to prove facts.

Key responsibility of the accused:
3. The accused decide whether or not to plead guilty. The accused has no obligation to give evidence or call a witness and it has the right to remain silent.

However, if an accused is self-represented they might not know the processes or the complications to plead guilty through plea-negotiations and other pre-trial procedures therefore they feel more pressured. As well as if the accused has a reversed burden of proof. EG. provisions of drugs.

Question 40

Legal Practitioners roles and responsibilities

Answer 40

They are the ones who conduct and prepare the cause on behalf of the parties, unless the accused is self-represented.

1. Comply with their duties to the court. It means that they must assist in finding the truth and not mislead the court. As well as act ethically and in accordance with the law, as they are expected to be courteous, cooperate with each other on court and comply with any directions given by the court.

However their duty to their client at times can mess with the fact that the legal practitioners have to put the court and law before the client, hindering confidentiality.

2. All practitioners must act in the best interest of their client. It means that accused’s legal practitioners must defend them regardless of their belief or opinion about guilt. And inform the accused about the basis of their rights.

However, it can add to the cost of the trial since better legal representation may mean that they cost more as well as legal practitioners will have to put the court and law before them, even if it means acting against their clients interest, therefore hindering confidentiality.

Question 41

What are Sanctions and its process

Answer 41

A penalty imposed by a court on an offender, in order to give force to criminal law. Also known as a “sentence”. If the accused has pleaded guilty to the charges before a magistrate/jury then a plea hearing will be held in the relevant court. During the process the prosecution and accused must present information they want the judge to take into account when deciding on their sentence. Then, the judge or magistrate summarises the case, imposes a sentence and outlines the reasons for the sentence. Aka “Judge’s sentencing remarks”, and often it is typed up and available as written for reasons for sentence.

Question 42

Deterrence

Answer 42

Deterrence- is to discourage the offender and others in the community from committing similar offences.
General Deterrence- aimed at discouraging the entire community from committing similar offences in the future. (because they see the consequences of committing the crime).
Specific Deterrence- aimed at discouraging the particular offender from committing similar offences in the future (since they experience the consequence of committing the crime).

Question 43

Rehabilitation

Answer 43

Rehabilitation - to reform an offender in order to prevent them from committing offences in the future. It is designed to address the underlying reasons for the crime and to treat the offender based on those reasons so that they have law-abiding lives in their future. Example: being on a CCO, where there are tailored special conditions such as alcohol rehabilitation or anger management counselling.

Question 44

Denunciation

Answer 44

Denunciation- relates to showing the courts disapproval of the offender’s conduct. For example: the judge may give a harsher sentence for a particularly violent rape.

Question 45

Protection

Answer 45

Protection- relates to safeguarding the community from the offender by physically preventing them from re-offending. Mostly commonly achieved through a long period of imprisonment.

Question 46

Punishment

Answer 46

Punishment- to penalise the offender by imposing some form of loss or burden on them for their unacceptable behaviour. Example: financial loss, loss of time, deprivation of liberty. The process for punishment through the courts avoids the need for the victims of crime to take the matter into their own hands and seek revenge.

Question 47

Explain and Discuss fines and their specific purposes

(P.D.F)

Answer 47

Fines a great way to discourage people/community as they are aware of how much they would have to pay if they commit an offence and since they do not want to pay money to the state. It can specifically discourage an individual from not committing similar crimes in future due to monetary loss. However Fines may not discourage committing offences for those who are wealthy. This is as those with money don’t feel the loss or burden of paying a fine. Due to this, it doesn’t discourage them as they have nothing to lose.

Fines can have an impact upon penalising the offender by imposing a financial loss. If a person does not have the financial means to pay the fine and the fine makes a significant difference to them then it would be a more severe ‘punishment’ for them.

Question 48

Explain and Discuss Community Corrections Orders and their specific purposes

(D.R.C)

Answer 48

offences such as manslaughter and kidnapping. It is tailored and flexible for the circumstances of each offender.
General deterrence: discourages the public because they are aware of the conditions attached to a CCO and will want to avoid offending and having to serve a CCO. Eg unpaid community work, loss of freedom/time.

Specific deterrence: CCOs discourage the particular offender as they would not want to comply with conditions imposed on them.

However CCO’s seem as an “easy way out” for some if the conditions are not harsh - this may lead to them reoffending as they believe the sanction was not severe.

If the special conditions are difficult to monitor (e.g., curfew/non-association), offenders may not comply and therefore won’t be discouraged from future offending because they didn’t suffer the negative consequences.

The special conditions are tailored to each offender’s circumstances (e.g., alcohol exclusion, treatments) which aims to reform the offender by treating the underlying causes of the offence. However, if the offender does not adhere to the conditions of the CCO (for example, consuming alcohol when given a special condition not to do so), there is no sense of reform occurring as the offender is returning back to the underlying cause of the offence.

Question 49

Explain and Discuss Imprisonment and their specific purposes

(P.I.P)

Answer 49

Since the recidivism rate in Victoria is 40%, there is an effort within prisons to provide opportunities for rehabilitation, such as: drug dependency programs, trade training, art programs.

Imprisonment achieves protection as it prevents the offender from reoffending by physically removing them (for a period of time) from the community which means that the community is protected since the offender is imprisoned. However, the community may not stay protected if shorter prison sentences are given/offender is released early since it puts the offender back in the community who may feel vulnerable to the offender.

Imprisonment penalises the offender as it takes away liberty and freedom. Heavier restrictions placed on the things that they can’t do and must adapt their lives to uncomfortable living conditions, such as living in a small 4.5 x 3 metre cell. However, some offenders may feel imprisonment provides them with more resources if they were struggling in the community for basic necessities such as shelter, food and water.

Question 50

Aggravating Factors and Examples

Answer 50

These are circumstances about the offender or offending that can lead to an increase in the sentence the offender will receive.
For example:
Using a weapon or violence when committing the offence.
The nature and gravity of the offence (e.g the crime was pre-planned).
The offence being seen by children
Any vulnerabilities of the victims (being very old, having a disability).
A breach of trust by the offender towards the victim (parent, teacher).
The offence occurred when the offender was on a CCO, out on bail or parole.
Prior convictions especially for similar offences.
The offender being motivated by hate or prejudice against that particular group of people.

Question 51

Mitigating Factors and Examples

Answer 51

These are circumstances about the offender that can lead to a less severe sentence.
For example:
Remorse shown by the offender (example: early guilty plea, cooperating with police).
The offender is of good character
The offender was acting under duress
The offender has no previous criminal history
An early guilty plea
The injury or harm caused was not substantial.
The offender was young and had some disability that made them not fully aware of the consequences of their actions.
The offender has shown some efforts towards rehabilitation while awaiting sentencing (e.g: enrolled in a drug treatment programme) or has shown a good prospects of rehabilitation.
The offender was under personal strain or they have a unique background which means a lighter stance would be imposed (e.g: they had a difficult or violent childhood).

Question 52

Guilty Pleas

Answer 52

The judge must consider whether the offender pleaded guilty and how far into the case they did so.

It is a mitigating factor because:
It benefits the criminal justice system by saving the time and resources of a trial, thus reducing delays and backlogs in the court system.
It benefits the prosecution because then they do not need to prepare for a trial.
It benefits the victim and their families because they can avoid the trauma of the trial and potentially give evidence.
It also benefits the accused because they do not need to go through a potentially traumatic trial or pay for legal representation for the trial, they will also receive a discounted sentence.

Question 53

Victim Impact Statements

Answer 53

It is a statutory declaration (legal written statement) that may be read or presented to the court during the plea hearing. It is an opportunity for the victim to explain to the court how the crime has affected them physically, emotionally, financially/socially. Since the Sentencing Act states that the impact of the crime on the Victim must be considered by the court during the sentence process.
The Victim’s Charter includes the right to prepare a VIS, but the victim may choose not to do so. People who witnessed the crime or even family members and sometimes friends of the person affected by it can choose to do it.

Question 54

Recent reforms - expansion of Koori Court System (2022)

Answer 54

Expansion of Koori Court System to Regional Victoria (2022)

The Koori Court operates as a sentencing court for some indigenous offenders. EG. Geelong County Koori Court which started hearing cases in January 2022.
Four conditions must be met:
1. The accused must be an Indigenous person
2. The offence must be within the jurisdiction of the relevant court
3. The accused must consent to the sentencing being done in the Koori Court
4. The accused must plead guilty.
Achieves fairness by allowing accused to participate in the hearing process → process is conducted informally and accused will feel more comfortable. However, since Koori Court is only used for sentencing, it is not available for contested criminal hearings such as sexual offences → doesn’t completely resolve many issues suffered by indigenous people in a full hearing (such as giving evidence and understanding procedures), hindering fairness.

Expansion enables greater access for the Indigenous Australian Population who may not have previously been able to access it, therefore achieving access. However, the expansion of the Koori Court does not address other issues such as access to information and knowledge about the rights and procedure.

Koori Court seeks to reduce systemic disadvantage by providing special measures/accommodations so that procedure is less disadvantageous for Aboriginal offenders. EG: Language Barriers (interpreters available to ensure what they want to say is communicated thoroughly). However a party may still suffer other characteristics or vulnerabilities which may put them at a risk of inequality. E.g: mental impairments or disabilities and not enough interpreters available in wide areas.

Question 55

Recent reforms - Broadening of sentence indication scheme for indictable offences (2022)

Answer 55

2) Broadening of sentence indication scheme for indictable offences (2022)

In 2022, the Criminal Procedures Act was amended. Previously judges could only indicate whether they would be likely to sentence the accused to an immediate term of imprisonment if they pleaded guilty at next available opportunity. Now, Judges can provide an indication about type of sentence (e.g. CCO), and maximum sentence they would give (10 years imprisonment).

The hearing rule is upheld since the judge or magistrate has to indicate the type of sentence or the maximum total effective sentence they would give the accused if the accused pleads guilty at the earliest opportunity. As well as the indication is given by an experienced and impartial judge or magistrate who has expertise in the area of law and sentencing (unbiased decision maker). However, the judge can refuse to grant the accused’s request for the sentence indication. This may seem unfair if the accused is willing to consider pleading guilty on the basis of sentence indication.

The accused will have more information about the sentence, such as the duration of a term of imprisonment of fine amount to inform their decision about whether to plead guilty. This will help reduce delays/backlogs from post COVID-related delays. However, If the accused does not apply then there will be a trial and that will consume time and resources therefore inflicting delays/backlogs in the court system.

Question 56

Recommended Reforms - Further expansion of the Koori Court

Answer 56

1) Further expansion of the Koori Court

There are County Koori Courts in all areas where the Magistrates’ Koori Court operates (for example, Portland and Bairnsdale).

The expansion would emphasise the importance that Koori Court can ensure fairness, particularly by allowing Indigenous people to participate in and understand the sentence processes. However, some may argue that all sentencing of indigenous people should be heard in a Koori Court-style however it does not fit with the model of the Koori Court where a person has to admit to guilt before participating in the process.

The expansion may enable greater access to the Koori Court for the Indigenous Australian population who may not have previously been able to access it. E.g: County Koori Courts to operate in Portland and Bairnsdale. However, the Koori Court is not a complete solution to the problems faced by Aboriginal and Torres Strait islander peoples. It is only a sentencing court which means it will not be accessible to those who plead not guilty. Furthermore, it is not available for contested criminal hearings such as sexual offence therefore hindering access since it leaves out offenders who have been convicted of this crime but cannot have access to the court because they do not hear this particular offence.

Question 57

Recommended reforms - Current committal test should be abolished

Answer 57

2) The current committal test should be abolished

Question 58

Factors affect the criminal justice system-COST

Answer 58

costs of private legal representation

• solicitors generally charge by hour (anywhere from $200-$800 per hour)
• barristers generally charge by the day (anywhere from $5000-$10000 a day) → mainly used for trials in the CC or SC(TD)
• court costs & disbursements → court filing fees, engaging expert witnesses etc.
  all gets more expensive in higher courts

Availability of legal aid

VLAs & CLCs available to provide assistance to accused who can’t afford legal rep
however, lack of adequate funding for these institutions resulted in tightening criteria for who’s eligible for assistance
estimated that legal aid is currently available to <8% of Australia’s population, but approx. 14% live below poverty line
led to idea of “missing middle” → those accused who can’t afford private legal rep but don’t qualify for legal aid
one option is for these accused to be self-represented at their hearing/trial; given they’re opposing prosecution, can lead to POJ issues (e.g. lack of understanding of procedure, delays due to judge explaining processes, accused not being able to present their case in best possible light etc)

Question 59

Factors-Time

Answer 59

court delays/backlog of cases

• what is considered ‘reasonable’ depends on complexity of case
• “Justice delayed is justice denied”

delays caused by no. factors
- time taken for parties to gather evidence & prepare for hearing/trial
- committal proceedings
- self-represented parties
- covid-19 backlogs due to restrictions, jury trial cessation etc

delays have no. significant impacts:
prolonged stress/increased cost for accused (esp. those on remand)
prolonged stress/trauma for victims/witnesses
memory of witnesses/availability of evidence
other cases waiting for hearing/trial

Ways that criminal system can reduce delays
- allowing judge civil trials for VIC offences during COVID restrictions 2020-2021 plus for a further 12 months from March 2022
- Plea negotiations
- sentence indications
- committal proceedings

Question 60

Factors-cultural differences

Answer 60

difficulties faced by Aboriginal & Torres Strait Islander peoples

• subtle differences in way language used by Indigenous people that can cause misunderstandings
• e.g. ‘kill’ may mean to hit someone, ‘story’ usually means the truth
• direct eye contact seen as disrespectful to some Aboriginal & Torres Strait Islander peoples, who try to avoid it by looking down/to side
• may make them appear uninterested/unreliable
• question & answer method of obtaining evidence may be inappropriate
• group agreement through long, roundabout discussion & storytelling is polite way to settle differences - directness is impolite
• criminal justice system w/ forced yes/no answers, sets Indigenous people up to look evasive/dishonest when being respectful

Question 61

Factors-language barriers

Answer 61

• accused people who don’t understand/speak English will have significant challenges knowing their rights, understanding court documents & processes, & presenting their case in best possible light
• under Victorian Human Rights Charter, accused guaranteed right to assistance of an interpreter (at no cost) if they can’t understand/speak English
• for summary offence, the Magistrates’ Court will organise this
• for indictable offence, the OPP solicitor will do so
• VLA & CLCs also have general legal info available in multiple languages online & in brochures
• however, access to an interpreter can vary greatly from court to court & depends on availability of interpreters in the language/dialect of accused