U3AOS1 LEG Flashcards
Summary Offence
Less severe criminal offences that are generally heard in the Magistrates’ Court. Sanctions
for such offences are usually small fines. An example is common assault.
Indictable Offences Heard Summarily
Are less serious indictable offences, heard in the Magistrates’ court. Such
offences may be heard summarily when the offence is not punishable by a maximum term exceeding 10 years of
imprisonment, and when the court and the accused agree
Indictable Offences
More serious and complex criminal offences that are heard by a judge and/or jury in the
County or Supreme Court. Sanctions for such offences like kidnapping are much more severe, for instance,
imprisonment
Burden of Proof
The Burden of Proof refers to the onus/responsibility held by the prosecution of proving the facts of the case as
they are making the allegation. However, this can be reversed if the accused raises the defence of self-defence.
Standard of Proof
The Standard of Proof is the level of proof that must be satisfied in order to find the accused guilty. The standard
of proof required in criminal proceedings is beyond reasonable doubt which means that there must be no other
logical explanation for who committed the crime. The judge/jury must have no reasonable doubt
Presumption of Innocence (POI)
The Presumption of Innocence (POI) is the right for all accused persons to be presumed innocent until; it is
proven by the prosecution that they are guilty beyond a reasonable doubt
right to be tried without unreasonable delay
The right to be tried without unreasonable delay ensures an accused person has their case heard in a timely
manner unless the court considers delay to the trial to be ‘reasonable’
right to be tried without unreasonable delay strengths and weaknesses
Strengths:
Witnesses are more likely to remember
key facts of the events, promoting fairness
as evidence presented is more reliable.
Accused does not have to endure
prolonged periods of stress and anxiety.
Weaknesses
Considering a trial may be delayed for extended periods if
reasonable, the memory of witnesses may fade or they may pass
away, preventing a fair trial.
The ambiguity of the term ‘reasonable’
A trial delayed for years may be considered ‘reasonable’ if it was
a result of the accused’s actions, such as the crime being
particularly complex as it would require more evidence.
right to silence
The right to silence is a common law right which upholds POI as it gives the accused a choice to not speak
during questioning or in court which can’t be viewed as a sign of guilt.
right to silence strengths and weaknesses
Strengths:
This can reduce power imbalance between the
prosecution and the accused as police are
unable to coerce an accused into making false
confessions. (Equality)
Weaknesses:
Although a judge may direct a jury that an accused’s silence
is not an indication of guilt, the jury may still inadvertently
believe an accused failing to defend themselves may be a
sign, potentially leading to an unfair result.
right to trial by jury
The right to trial by jury allows the accused to be tried by unbiased members of the community selected from
the electoral roll. This right only applies for indictable offences.
right to give evidence using alternative arrangements
The right to give evidence using alternative arrangements is an entitlement for victims or witnesses of certain
crimes (sexual offences/family violence) in Victoria to give evidence in court in a non-standard way which aims
to be less traumatic for the victim when giving evidence. This can be through a screen to remove the accused
from the witnesses’ vision or the witness could give evidence through CCTV from outside the courtroom.
right to be informed about the proceedings
The right to be informed about the proceedings is an entitlement which can provide victims with info about the
case they are involved in by the OPP + VicPol. This includes the offence the accused has been charged with,
whether bail has been granted, the date and time of a trial.
right to be informed of the likely release date of the offender
The right to be informed of the likely release date of the offender is a right provided to victims of a violent
crime whereby they can apply to be registered on the Victims Register to be informed of the likely release date
of the imprisoned offender. Victims can be advised of other information including:
★ Length of the offender’s sentence and any charges
★ If the offender applies for/is released on parole
★ Offender’s death or escape from prison
Fairness
requires all processes to be impartial and open, therefore enabling a just outcome to a criminal trial.
This refers to a transparent hearing.
Equality
requires all individuals engaging with the justice system to be treated the same, regardless of personal
attributes such as gender or religion.
Access
requires all individuals engaging with the justice system with as few barriers as possible. They must also
be informed of the processes in the legal system.
Victoria Legal Aid
Victoria Legal Aid is a government funded agency that provides free legal information to the public and free or
low-cost legal services to eligible Victorians. VLA commonly provides services to criminal law and family law.
VLA is funded by the state and federal government. Strict eligibility requirements must be satisfied to receive a
duty lawyer or a grant of legal assistance which includes the means test and income test.
VLA POJ’s achieved
Victims are able to access resources by calling VLA
which has staff that speak many languages. A free
interpreter can also be organised, promoting equality as victims can obtain information regardless of their language.
VLA POJ’s not achieved
Limited budget and resources meaning only a small number of accused persons can access VLA which hinders fairness as a justice given that not all
individuals can participate and adequately present
their case.
Community Legal Centres
Community Legal Centres are independent, not for profit organisations that aim to offer high-quality, free and
accessible legal support and education to members of the community, particularly those facing hardships.
★ Generalist CLCs: broad legal services to people in a particular local geographical area. Eg. Peninsula
community legal service.
★ Specialist CLCs: legal services to a particular group of people. Eg. Youthlaw.
CLCs are funded by Victoria Legal Aid, state and federal government and private donations.
CLC POJ’s acheived
CLCs can provide specific advice to victims and cater
to their personal circumstances, ensuring all people,
regardless of personal characteristics receive
appropriate legal info. For instance, the Disability
Discrimination Legal Service provides specialised
services to those with a disability. (Equality)
CLC POJ’s not achieved
There are not as many CLCs located in rural parts of Victoria, limiting access to legal assistance to those in remote areas.
CLCs can’t provide assistance to all victims of crime, meaning those who are affected by serious crimes may not be able to participate in the justice system, limiting fairness.
Plea Negotiations
discussions between the prosecution and the accused, aimed at encouraging the accused to plead guilty to a lesser charge or fewer charges in exchange for the prosecution requesting a lesser sentence
Purposes:
★ To resolve a case by ensuring a guilty plea to a charge which adequately reflects the crime/s that was
committed.
★ A prompt and certain resolution without the cost, time, stress, trauma and inconvenience of a trial.
