U3AOS1A Flashcards
Criminal Law
What are summary offences?
- they are minor offences
- they are usually heard in the Magistrates’ Court
- do not require a jury
- mainly found in the Summary Offences Act 1966
- maximum imprisonment can be 2 years for a single offence and 5 years for multiple offences
What are examples of summary offences?
- disorderly conduct
- drink driving
- minor assaults
What are indictable offences?
- are serious criminal offences
- usually heard in the County Court OR the Supreme Court
- usually require a judge and jury
- mainly found in the Crimes Act 1958 (Vic)
What are examples of indictable offences?
- rape
- murder
- fraud
- drug offences
When do committal proceedings occur and where?
Occur when an accused person is charged with an indictable offence and pleads not guilty.
- Magistrates’ Court
What are committal hearings?
This is where the Magistrate will decide whether there is sufficient evidence to support a conviction at trial.
What happens if there is sufficient evidence at the committal hearing?
The audience is committed to stand trial and the case is transferred to a higher court.
What happens if there is insufficient evidence at the committal hearing?
The accused is discharged and allowed to go free.
What are indictable offences heard summarily?
They are serious offences that can be heard in the Magistrates’ Court as if they were minor offences.
When can indictable offences be heard summarily?
Can only occur if:
- The accused agrees to it
- The court agree it is appropriate
- The maximum sentence for the crime is less than 10 years
What is the burden of proof?
The obligation (or responsibility) of a party to prove a case.
Who usually holds the burden of proof in a criminal case?
Prosectution
When can the burden of proof be reversed?
Example:
The accused is pleading self-defence or mental impairment.
What is the standard of proof?
The degree or extent to which a case must be proved in court.
To what standard of evidence should the prosecution prove to the court?
The prosecution must prove that the accused is beyond reasonable doubt guilty.
What is the presumption of innocence?
Any person that has been accused of a crime is presumed innocent until they have been guilty in a court of law.
What are some ways the criminal justice system upholds the Presumption of Innocence?
- Imposing a high standard of evidence on the prosecution
- The use of the **bail system **to allow an accused their liberty prior to the court date
- The right to silence during questioning and the trial
- Not allowing a person’s prior convictions to be revealed until their sentencing (after they have been found guilty)
What are the THREE Rights of an Accused?
- The Right to be Tried without Unreasonable Delay
- The Right to Silence
- The Right to a Trial by Jury
What does The Right to be Tried without Unreasonable Delay mean?
If a person is charged with a criminal offence, they are entitled to have their trial heard within a timely manner and any delays that occur should be for purposes deemed reasonable.
What does The Right to Silence mean?
Describes different types of prosecutions given to an accused person to not have to say or do anything. This includes:
- The right to refuse to answer any questions and not give any information during the investigation of a crime
- Not being forced to give evidence in a criminal trial, answer any questions, file any defence, or call witnesses
What does The Right to a Trial by Jury mean?
For the accused to be judged by their peers, or members of the community. It also allows for community participation in the legal system, as the 12 jurors are selected randomly from the Victorian Electoral Roll.
What are the THREE rights of the victim?
- The Right to Give Evidence using Alternative Arrangements
- The Right to be Informed about the Proceedings
- The Right to be Informed of the Likely Release Date of the Offender
Where can the rights of victims be found?
Victims’ Charter Act 2006 (Vic)
What does The Right to Give Evidence using Alternative Arrangements mean?
In order for them to give quality evidence in a trial they may need alternative arrangements to make them more comfortable in a courtroom.
What are the kind of victims that can be granted to give evidence using alternative arrangements?
Such arrangements can be made for victims who have experienced:
- A sexual offence
- A family violence offence
- An offence for obscene or threatening language in public
- An offence for sexual exposure in public
What are some of the alternative arrangements that victims can receive?
Some of the alternative arrangements that can be provided for a victim include:
- The witnesses may give evidence from a place other than the courtroom by means of CCTV
- Retractable screens may be placed between the victim and accused
- A support person may accompany the victim when giving evidence
- The court may limit the number of people in the room when evidence is given
- Legal practitioners may be required to stay seated when questioning the witness
What does The Right to be Informed about the Proceedings mean?
**Sections 7, 8 and 9 **of the Victims’ Charter requires the investigating agency to inform the victim of the offence about any information regarding the proceedings at regular intervals.
What are some examples of information a victim may receive?
Some examples of information a victim may receive can include:
- Details of the offences **charged against the accused **
- How the victim can found out the date, time and location of the proceedings
- The outcome of the criminal proceedings
- Any appeal requests by the accused
What does The Right to be Informed of the Likely Release Date of the Offender mean?
The victim is entitled to find out about any information regarding their release date from imprisonment, as well as any parole opportunities when they are applied for.
BUT the person must be on the Victims’ Register and must be a victim of a criminal act of violence. The victim must also be notified at least 14 days prior to the release date.
What are examples of criminal acts of violence?
- Rape and other sexual offences
- Aggravated burglary
- Kidnapping
- Dangerous driving causing death or serious injury
What is the acronym to describe the principles of justice?
FEA
What does FEA stand for?
Fairness
Equality
Access
What does fairness mean in the PoJs?
All people can participate in the justice system, and its processes should be impartial and open.
What are the THREE broad features of fairness in the PoJs?
1. Impartial processes
Relates to the judges, magistrates, jury members and all court personnel being independent and objective
2. Open processes
Ensures that the institutions and people who administer justice can be held accountable for their actions and decisions
3. Participation
Primarily relates to the accused, but can apply to victims, and their ability to be actively involved in their case
What does equality mean in the PoJs?
All people engaging with the justice system and its processes should be treated in the same way. If the same treatment shows disadvantage, adequate measures should be implemented to counter this disparity.
What are the TWO broad features of equality in the PoJs?
1. Same treatment
Known as ‘formal equality’ and refers to when everyone is treated in the same way regardless of personnel characteristics
2. Different treatment
Known as ‘substantive quality’ and exists for those who would experience disadvantage if they were treated in the same way as everyone else, so special measures are needed
What does access mean in the PoJs?
All people should be able to engage with the justice system and its processes on an informed basis.
What are the TWO broad features of access in the PoJs?
1. Engagement
Refers to the ability for people to use and participate within the justice system. This can include physical access, technological access and/or financial access
2. Informed bias
People should be able to engage in the justice system on an informed basis, meaning they should understand their legal rights, and be provided with enough information to make a reasoned decision
What is Victoria Legal Aid (VLA)?
Provides free legal information to the community, and legal advice and legal representation for people who cannot afford a lawyer.
What are the types of assistance that the accused receives from VLA?
- free legal information
- free legal advice
- duty lawyer services
- grants of legal service
Income test - the test applied by VLA to determine whether a duty lawyer can represent an accused. The test is satisfied when the accused can show they have limited income
Means test - the test applied by VLA to determine whether an applicant qualifies for legal assistance or representation in court (beyond a duty lawyer). It takes into account the applicant’s income, assets and expenses
What are the types of assistance that victims receive from VLA?
- free legal information
- free legal advice
- duty lawyer services
- grants of legal assistance
What are Community Legal Centres (CLC)?
Independent organisations that provide free legal services to people who may not be able to access it. There are approximately 46 CLCs in Victoria. They also have a working relationship with VLA to ensure that people are getting legal support.
What are the TWO types of CLCs?
1. Generalist CLCs
Provide broad legal services to a particular geographical area
2. Specialist CLCs
Focus on a specific group of people or area of law
What are the roles of CLCs?
- Provide accused people with information, legal advice and ongoing assistance in a case
- Provide legal education to the community so they understand their rights
- Advocates to changes to the justice system to address unfair laws or practices
What are the types of assistance that the accused receives from CLCs?
- basic legal information
- legal advice and assistance
- ongoing casework
What is the eligibility of CLCs?
They generally consider the following factors:
- The type of legal matter the person **needs help with **
- Whether other assistance is available (such as through VLA)
- Whether the person **has a good chance of success **
- Whether the CLC is available to assist
What are the types of assistance that victims receive from CLCs?
- basic legal information
- legal advice and assistance
- duty lawyer services
- ongoing casework
What are plea negotiations?
Are discussions that take place between the prosecutor and the accused about the charges against the accused. Victim’s views may be taken into account but they do not have a say in whether the negotiations occur.
What are the purposes of plea negotiations?
1. To ensure certainty of the outcome of a criminal case
This reduces the risk of acquittal and ensures that a plea of guilty is reached immediately.
2. To save on costs, time and resources
If a plea negotiation is successful then it does not need to proceed to a full trial and saves court resources.
3. To achieve a prompt resolution to a criminal case without the stress, trauma and inconvenience of a criminal trial
This can help the victims and witnesses begin to move on from what has occurred.
What are some factors that prove the appropriateness for plea negotiations?
- Whether the accused is willing to cooperate
- The strength of the evidence (of both parties)
- Whether the accused is willing to plead guilty
- Whether the accused is legally represented
- Whether witnesses are reluctant to give evidence
- The possible adverse consequences of a full trial
- The time and expenses involved in a trial
- The views of the victim
What are the strengths of plea negotiations?
- prosecutor will consult with victims and may take their views into consideration when deciding whether to negotiate with an accused
- provide substantial benefits to the community by saving the cost of a full trial or hearing
What are the weaknesses of plea negotiations?
- victims do not have a ‘final say’ on whether a prosecutor negotiates with the accused
- a self-represented party may feel pressured into accepting a deal even if the evidence is not strong
