U3AOS1B Flashcards
Criminal Law
What is the order of the court hierarchy? (Highest to lowest)
- The High Court
- Supreme Court of Appeal (Court of Appeal)
- Supreme Court of Victoria (Trial Division)
- County Court of Victoria
- Magistrates’ Court of Victoria
- Coroner’s Court
- Childrens’ Court
What does jurisdiction mean?
The lawful authority of a court, tribunal or other dispute resolution body to decide legal cases.
What are the TWO types of jurisdictions and what do they mean?
- Original jurisdiction: The power of a court to hear a case for the first time
- Appellate jurisdiction: The power of a court to hear a case that is being reviewed or challenged (from a lower court)
What is the jurisdiction for the Magistrates’ Court?
Original jurisdiction:
- all summary offences and indictable offences heard summarily
- committal proceedings, bail applications and warrant applications
Appellate jurisdiction:
- no appellate jurisdiction
What is the County Court’s jurisdiction?
Original jurisdiction:
- indictable offences except murder, attempted murder, certain conspiracies, corporate offences
Appellate jurisdiction:
- from the Magistrates’ Court on conviction or sentence
What is the Supreme Court’s Trial Divisions’ jurisdiction?
Original jurisdiction:
- most serious indictable offences, including murder, attempted murder, certain conspiracies, and corporate offences
Appellate jurisdiction:
- from Magistrates’ Court on points of law
What is the Supreme Court’s Court of Appeal’s jurisdiction?
Original jurisdiction:
- no original jurisdiction
Appellate jurisdiction:
- from the County Court or the Supreme Court (Trial Division)
- from the Magistrates’ Court where the Chief Magistrate decided the case
What are the TWO reasons for having a court hierarchy?
- Specialisation
- Appeals
What is specialisation?
Refers to the areas of expertise that courts develop and that the personnel have expert knowledge in.
Example:
The County Court has expertise in hearing particular types of indictable offences (such as drug offences, sexual offences and theft)
The Magistrates’ Court is more familiar with summary offences that need to be dealt quickly, committal proceedings, and dealing with self-represented accused people (as this is increasingly more common)
What are appeals?
If there are grounds for appeal, a party who is dissatisfied with a decision in a criminal case can take the matter to a higher court to challenge the decision.
Grounds for appeals include:
- Appealing on a question of law (both parties)
- Appealing a conviction (only the offender can appeal)
- Appealing the sanction imposed (too lenient or severe)
What are the strengths to the reasons for a court hierarchy?
- allows courts to specialise in different types of criminal matters, which allows more efficient processes or resources based on the cases they hear
- allows appeals to be made by both parties if there is an error in the original decision
What are the weaknesses to the reasons for a court hierarchy?
- the many courts can be confusing for the people who do not understand the criminal justice system. This can be particularly so for people charged with an indictable offence, where the case will involve both the Magistrates’ Court and one of the higher courts
- does not allow for an automatic right to appeal in most instances; offenders need to establish grounds for appeal. This can restrict the ability of accused people to access the appeal hierarchy, particularly self-represented people, who may struggle to formulate grounds for appeal
Who are the THREE key personnels in a criminal case?
- Judge/magistrate
- Jury
- Parties
What are the FOUR roles of the judge in a criminal case?
1. Act impartially
2. Manage the trial or hearing
3. Decide or oversee the outcome of the case
4. Sentence an offender
What does it mean to act impartially? (judge role - criminal)
- Judges or magistrates should not be biased, or act in a way that makes it seem like they are favouring a party or individual
- In cases where a judge or magistrate cannot be impartial, they should remove themselves from the case to avoid unfairness
What does it mean to manage the trial or hearing? (judge role - criminal)
- Judges and magistrates have the important role of controlling and supervising the case
- They need to ensure that correct court procedure is followed, make decisions during the trial (such as permitting or excluding evidence), or adjust trial processes to ensure equality
- They do not take sides in the hearing (magistrate) or trial (judge), they simply manage the courtroom and those within it
What does it mean to decide or oversee the outcome of the case? (judge role - criminal)
- The magistrate will decide the verdict in their cases, as there is no jury in summary offences. They need to listen to the evidence, decide whether the accused is guilty, and refer them for sentencing
- The judge does not decide the verdict, however they play an integral role in assisting the jury to understand their job and the facts of the case to make an educated decision (including the laws)
What does it mean to sentence an offender? (judge role - criminal)
- If an accused is found guilty, or pleads guilty, the case will set for a plea hearing in which the parties will make submissions about sentencing
- The judge or magistrate will then hand down the sentence, this may be on the same or a different day. They must comply with the Sentencing Act 1991 (Vic) and any relevant laws about the offence
- Judges will hear from the offender, as well as the victims, before deciding on the sanction
What are the strengths to the role of the judge in a criminal case?
- acts as an impartial umpire. They oversee trial process, but they do not overly interfere in a trial or help either party argue their case. This means no party is advantaged or disadvantaged because the judge/magistrate ‘takes sides’
- manage the hearing processes, ensuring that rules of evidence and procedure are followed, and both parties have an opportunity to present their case
- are able to assist self-represented accused people and can adjust the trial process to accomodate more vulnerable people, such as young people, people with a disability, or people with a mental health condition
What are the weaknesses to the role of the judge in a criminal case?
- judges/magistrates are human, and there can be risks that they have actual or apprehended bias that impacts their decision-making, such as when they are fatigued
- previous research suggest there is a lack of diversity in Australian judges/magistrates (in 2015 - 4 judicial officials were Asian Australians, women were underrepresented in higher courts) and can impact on the extent to which accused people feel comfortable in the courtroom
- judges/magistrates cannot overly interfere in a case, including those involving a self-represented accused person, even though they are one of the most experienced in the room
What are the FOUR roles of the jury in a criminal case?
1. Be objective
2. Listen to and remember evidence
3. Understand directions and summing up
4. Deliver a verdict
What does it mean to be objective? (jury role - criminal)
- The jury must be open-minded and unbiased when playing their part in a trial
- They must not have any preconceived notions, or any connection, to the parties involved
- They must take their choice based solely on the facts presented in the courtroom
What does it mean to listen to and remember evidence? (jury role - criminal)
- Evidence is often complicated, and is mainly delivered in the form of questions and answers
- In order to make sense of the information presented, jurors can take notes to help them remember
- Jurors must not conduct any of their own research on the case or parties involved, this can cause a bias and create an unfair trial
- If jurors breach their obligations then the jury may be discharged, and the case will need to be delayed to wait for new jurors to be empanelled
What does it mean to understand directions and summing up? (jury role - criminal)
- At the conclusion of the trial, the judge will deliver a summary of what has been brought up in the courtroom (including the laws involved, key evidence, and expectations of the jury)
- Jury directions may also be given throughout the trial to clarify any confusing points or language
What does it mean to deliver a verdict? (jury role - criminal)
- Jury members must take part in the deliberations and form an opinion on whether they believe the accused is guilty or not guilty
- Deliberations are confidential, and they do not need to give reasons for their choice
- Jurors should aim for an unanimous verdict but for cases other than murder, treason or certain drug offences, the court may accept a majority verdict
What are the strengths to the role of the jury in a criminal case?
- jury members are randomly picked, have no connection to the parties, and make a decision based on facts, not on biases or on their own enquiries
- collective decision-making can reduce the possibility of bias, as it means any personal, subconscious biases can be identified during the deliberation process and addressed by the group
- they represent a cross-section of the community. They are made up of a diverse group of people, which can lead to the decision reflecting the views and values of our society
What are the weaknesses to the role of the jury in a criminal case?
- may have unconscious biases or prejudices, and as they do not give reasons for their decisions, there is no way of knowing whether bias played a role in their decision-making
- criminal trials can be complex, including directions given to the jury and the evidence given at trial. It is not clear whether 12 laypersons on a jury will be able to understand the legal principles involved and the evidence that is given to them to make a decision based on the facts
- a number of people cannot participate in a jury because they are ineligible, excused or disqualified. Therefore, it is possible that a large section of the community is not represented
What are the TWO parties of a criminal case?
1. Prosecution
2. Accused
What are the THREE roles of the prosecution in a criminal case?
1. Disclose information to the accused
2. Participate in the trial or hearing
3. Make submissions about sentencing
What does disclose information to the accused mean? (prosecution role - criminal)
- Prosecutors must disclose all relevant matters to the accused, such as evidence to be used against them and material that may assist their case
- The obligation also extends to disclosing any relevant convictions of prosecution witnesses, which can assist the accused when they cross-examine the witness to disprove their credibility
What does participate in the trial or hearing mean? (prosecution role - criminal)
The prosecution must present the case, this includes: presenting their opening address (which outlines their case to help the court and jury understand the issues involves), present evidence that supports the case, cross-examine the witnesses, and make a closing address (which should be fact-based)
What does make submissions about sentencing mean? (prosecution role - criminal)
The prosecutor should inform the court about laws that apply during sentencing, as well as any information about the offence or the offender that they deem relevant
What are the TWO roles of the accused in a criminal case?
1. Participate in a trial or hearing
2. Make submissions about the sentencing
What does participate in the trial or hearing mean? (accused role - criminal)
- The accused has the choice to fully participate in the trial or hearing, or they are entitled to remain silent and do nothing
- If they choose to present a defence, they will: present their opening address, present evidence to support their case, call witnesses, cross-examine the witnesses, and make a closing address (free from emotion and based on the evidence)
What does make submissions about sentencing mean? (accused role - criminal)
- The offender can also make submissions about sentencing
- The aim of the offender, and their legal team, is to obtain the least possible sentence available
- They cannot mislead the court, but they should provide factors about their life or the offence that could lessen the sentence
What are the strengths of the role of the parties in a criminal case?
- prosecutors has special obligations to disclose all relevant matters to the accused. This ensures there is no ‘trial by ambush’ in that another party is unable to challenge evidence of the other party because they have not been given prior notice
- both parties have the opportunity to present their cases, including when making opening and closing addresses. This also includes the opportunity to **cross-examine witnesses **
- the accused has no obligation to present evidence or do or say anything in the trial
What are the weaknesses of the role of the parties in a criminal case?
- VLRC noted in one of its inquiries that early and adequate disclosure is an issue in Victoria. For example, it noted that sometimes the police often wait to see what the defence requests rather than providing disclosure upfront
- processes involved are complex and difficult to understand without a lawyer, making it difficult for self-represented accused people
- ‘party control’ and the right to silence may mean that the truth does not come out. For example, the accused may not say or do anything. This is particularly so in situations where the accused is the only person that knows what happened. This may feel particularly unjust for victims and their families
What are some reasons why we need legal practitioners?
- A person who is representing themselves lacks the skills and experience to navigate the justice system and test the evidence (including in situations such as plea negotiations and cross-examining witnesses)
- A self-represented accused person may struggle to remain objective during the case which can affect their decision-making ability
- For traumatic or difficult cases, it avoids a situation where the accused is directly questioning witnesses
- Although the court and judges can assist self-represented accused people to some extent, this cannot extend to advocating their behalf
What are the strengths to having a legal practitioner in a criminal case?
- experts who can help the accused person navigate the criminal justice system (assisting in opening and closing addresses)
- have objectivity in being able to make decisions in the criminal case, such as whether to accept an agreement in a plea negotiation
- help avoid delays that may arise with self-represented accused people
What are the weaknesses to having legal practitioners in a criminal case?
- not all LPs are equal or have the same level of experience and skills. Some LPs are more experienced than others, which may impact on the quality of the legal services
- not everyone can afford legal representation, so some people may be left to represent themselves (those parties normally don’t have the experience or skills to be on the same level as a LP)
- may not assist an accused, particularly those who cannot understand English or those suffering trauma - meaning they need more support
What are the THREE factors that impact the PoJs?
- Costs
- Time
- Cultural differences
What does costs mean in factors that impact the PoJs?
Costs of legal representation
- The main costs someone will incur in a criminal case is for a lawyer
- The greatest financial impact tends to be on the accused
- Although everyone has the right to legal representation, not everyone can afford it
- An accused who cannot afford a lawyer may apply to VLA, a CLC, or a pro bono lawyer but this does not guarantee representation
Measures to address costs
- The provision of free legal aid through VLA and CLCs is considered a key measure
- The increasing service gap means that more people who need low-cost legal aid are not receiving help due to financial constraints
- Courts and judges have adjusted their processes to help self-represented parties
- Use of committal proceedings and plea negotiations to filter out ‘weaker’ cases
What does time mean in factors that impact the PoJs?
Court delays
- Most criminal cases involve gathering evidence, locating and interviewing witness, determining what happened and deciding the charges
- The more complicated a case is the longer it may take to be ready for trial
- County Court cases have been estimated to take between 14 and 16 months to be ready for trial
- The COVID-19 pandemic caused a backlog of cases waiting to be heard
Measures to address delays
- The use of plea negotiations helps to address delays faced by the courts
- This can be done by achieving an early guilty plea prior to the trial being prepared, presented and concluded
- During the COVID-19 pandemic, the Victorian Government introduced temporary legislation to have judge-alone trials (if the accused consented)
- Investment into digital technology allows for remote hearings to take place, which helps to reduce the backlog and increases the amount of cases heard by a court
What does cultural differences mean that impact the PoJs?
For First Nations Peoples
Language barriers - some words used by Indigenous people have different meanings
Direct questioning - it is polite to settle group agreement through discussion and storytelling
Body language - direct eye contact is seen as disrespectful (rather than unreliable)
Cultural taboos - it is taboo to mention the names of deceased peoples, or gender-based knowledge
Lack of understanding of court proceedings
Cultural language barriers
- Many members of the Australian community were born overseas and have a language other than English as their first language
- This affects things that the court may see as simple such as understanding documents, following court procedures and the legal terminology used in criminal cases
- Victims may also struggle to understand their rights or the questions being asked of them
- Under the Human Rights Charter, one of the rights guaranteed to a person is the right to have the assistance of an interpreter if they cannot understand or speak English
Measures to address cultural differences
- The introduction of the Koori Court is to try and limit the difficulties faced by the First Nations peoples
- The provision of free interpreters helps those accused of a crime to still understand the processes happening around them
- However, access to an interpreter can vary greatly from court to court
- Information both provided both online and in-person from VLA and CLCs is provided in many different languages
What are the FIVE purposes of sanctions?
- Rehabilitation
- Deterrence
- Protection
- Punishment
- Denunciation
What does rehabilitation mean in the purposes of sanctions?
Is designed to address the underlying reasons for the offending and to treat the offender of these reasons.
- A sanction designed to rehabilitate will aim to assist offenders to change their attitudes and behaviour
- The most appropriate sanction to rehabilitate is a community correction order (CCO) because it can allow for participation in rehabilitative programs
What does deterrence mean in the purposes of sanctions?
Is designed to discourage the offender and others in the community from committing similar offences.
General deterrence
Aims to deter the community from committing similar offences. This can be important in violent or serious crimes such as homicide and sexual assault.
Specific deterrence
Aims to deter the offender from reoffending in the future. This becomes common when the offender has many prior convictions.
What does protection mean in the purposes of sanctions?
Aims to safeguard the community from an offender in order to prevent them from committing further offences.
- Imprisonment is the most appropriate sanction when prioritising protection
- It is believed that depriving a dangerous offender of their freedom will ensure the protection of their victims and the wider community
- Non-custodial sentences can also achieve protection as they can keep the offender occupied and can attach conditions that restrict the offender’s complete **movement **
What does punishment mean in the purposes of sanctions?
Aims to penalise the offender by giving the community the opportunity to seek revenge against the offender through the legal system.
- This ensures that the victim does not feel that they need to take matters into their own hands in order to seek revenge
- Judges will need to evaluate the offence and decide on a punishment that is proportionate to the crime, and is within the law
- In most instances of punishment, the sanction received would be the maximum sentence available. Which is commonly a term of imprisonment for severe offences
What does denunciation mean in the purposes of sanctions?
Means to publicly condemn (or criticise) the offender’s criminal behaviour, and to highlight how the action went against the moral and ethical standards of society.
- Denunciation is designed to demonstrate the community’s disapproval of the offender’s actions
- It also displays the court’s lack of tolerance for this type of behaviour. This purpose is becoming more common in family violence and hate crimes
- Typically, the judge will make comments stating the extent of the outrage toward the offender’s actions and condemn the offence they have committed
What are the THREE types of sanctions?
- Fines
- Community Corrections Order (CCO)
- Imprisonment
What are fines and what must the judge consider?
Is a sanction that requires the offender to pay an amount of money to the state.
Considerations:
- The purposes that the court wishes to achieve
- Any aggravating or mitigating factors
- The offender’s ability to pay
- Any previous precedents set for the same offence
What is a Community Corrections Order (CCO) and what are some of the conditions of being under one and the special conditions?
A community correction order is a supervised sentence served in the community that includes special conditions suited to the offender and the case.
Core conditions:
- The offender must not commit another offence punishable by imprisonment
- Must report to and receive visits from a community corrections officer
- Must not leave Victoria without permission
- Must comply with any directions of community corrections officer
Special conditions:
- Unpaid community work (court determines the amount of hours but it cannot exceed 600)
What is imprisonment and what are the THREE important terms under it?
Is a sanction that involves removing the offender from society for a stated period of time and placing them in prison.
Cumulative sentence: Where two sentences of imprisonment are imposed, and are to be served one after another.
Concurrent sentence: A term of imprisonment that is to be served at the same time as one or more other sentences.
Indefinite sentence: A term of imprisonment that has no fixed end date, usually given to the most serious offenders.
What are the FOUR factors to consider in sentencing an accused in a criminal case?
- Aggravating factors
- Mitigating factors
- Victim Impact Statement (VIS)
- Guilty pleas
What are aggravating factors? (include examples)
Are circumstances about the offender or the offence that can lead to an increase in the sentence that the offender will receive.
Factors can include:
- The use of violence or a weapon
- The nature and gravity of the offence (victim suffering, etc)
- Any vulnerabilities of the victim
- Offender being motivated by hatred or prejudice against a group
- The offence taking place in front of children
- A breach of trust by the offender towards the victim
- The offence occurred while on a CCO or on bail
What are mitigating factors?
Are considerations about the offender, the victim or the crime itself that can lead to a decrease in the sentence or the seriousness of the offence.
Factors can include:
- The offender showed remorse
- The offender has no prior convictions
- The offender was acting under duress
- The offender has shown effort towards, or has prospects of, rehabilitation
- The offender was under personal strain at the time, or have a unique background
- The injury or harm caused was not substantial
- The offender was young, or has a disability
- The offender pleaded guilty early
What is a Victim Impact Statement?
Are statements written to show the full impact of the offence on the victim, and the personal circumstances of the victim.
- Contains particulars of any injury, loss or damage suffered by the victim as a direct result of the offence
- A victim may present the statement to the court if the offender is found guilty, but it must be filed with the court before sentencing
What is a guilty plea?
- If an offender pleads guilty at the earliest possible opportunity then a reduced sentence is almost guaranteed
- Considerations when an offender pleads guilty early include the time, money and resources that it saves the State if there is no trial at all
- If an offender pleads guilty during the trial, or is found guilty increased sentence is the likely result
