U3AOS1B - Criminal Justice System (Parties and Sentencing) Flashcards
Comparison with Civil Key Personnel + Cards with legal practitioners in other decks
1
Q
What is the order of the court hierarchy?
A
- Magistrate’s
- Coroners
- Children’s
- County
- Supreme (Trial)
- Supreme (Appeal)
- High Court (Federal)
2
Q
What is jurisdiction?
A
- How the courts are ranked
- Based on severity and complexity of cases
- Types
- Original - Hear for the first time
- Appellate - Hear a case that is being reviewed or challenged
3
Q
What is the criminal jurisdicition of the Magistrates’ Court?
A
-
Original
- All summary offences
- Indictable heard summarily
- Committal proceedings
- Bail
- Warrant
4
Q
What is the criminal jurisdiction of the County Court?
A
-
Original
- Indictable except…
- Murder
- Attempted murder
- Certain conspiracies
- Corporate
- Indictable except…
-
Appellate
- From Magistrates’ on conviction or sentence
5
Q
What is the criminal jurisdiction of the Supreme Trial Court?
A
-
Original
- Serious indictable - All that the County Court cannot hear
-
Appellate
- From Magistrates’ on points of law
6
Q
What is the criminal jurisdiction for the Supreme Appeal Court?
A
-
Appellate
- From County
- From Supreme (Trial)
- From Magistrates’ where th Chief Magistrate decided the case
7
Q
What are the reasons for the court hierarchy in criminal law?
A
-
Specialisation
- Areas of expertise that…
- Courts develop
- Personnel have expert knowledge in
- Areas of expertise that…
-
Appeals
- When a party is dissatisfied with a decision - They take the matter to a higher court to challenge
-
Requirements
- Question of law (both parties)
- Based on conviction (offender)
- Questioning sanction imposed (too lenient or severe)
8
Q
What are the advantages of a court hierarchy?
A
- Allow courts to specialise
- More efficient processes or resources
- Allow appeals to be made
9
Q
What are the disadvantages of a court hierarchy?
A
- Wide range of types can be confusing for people who don’t understand the justice system
- E.g - Someone charged with an indictable offence has to attend the Magistrates’ for a committal proceeding and one of the higher courts for trial
-
Does not allow automatic right for appeal
- Need to establish grounds
- Restrict ability of accused to access the appeal hierarchy (such as self-represented)
10
Q
Describe the role of a judge in a criminal trial
A
- Individual appointed to conduct trials and resolve legal disputes
-
Roles
- Act impartially
- Manage trial/hearing
- Decide or oversee the outcome
- Sentence an offender
11
Q
What are the strengths of a judge in a criminal trial?
A
-
Impartial umpire
- Oversee case but does not interfere
- No party advantaged or disadvantaged
-
Manage hearing processes
- Ensure rules of evidence and procedure are followed
- Able to assist self-represented
- Adjust trial to accommodate vulnerable people
12
Q
What are the weaknesses of a judge in a criminal trial?
A
- Human - Risk actual or apprehended biases
-
Lack of diversity
- Lack of Asian Australians
- Women underrepresented
- Impact comfortability and confidence in administration of justice
-
Cannot overly interfere
- Can adjust trial but cannot advocate on behalf of parties
13
Q
Describe the role of a jury in a criminal trial
A
- 12 members selected randomly to listen, decide the facts and deliver the verdict
-
Roles
- Be objective
- Listen to and remember evidence
- Understand directions and summing up
- Deliver a verdict
14
Q
What are the strengths of a jury in a criminal trial?
A
-
Randomly picked
- No connection to parties
- System allows members to participate
- Collective decision-making reduces bias
- Juries represent a cross-section of the community
- Decision reflects views of society
15
Q
What are the weaknesses of a jury in a criminal trial?
A
- May have subconscious biases or prejudices
-
Trials complex
- No guarantee they understand
- Jury trials may result in more delays
- Number of people cannot participate (challenged, not eligible)
- Possibility that community is not fully represented
16
Q
Describe the role of the parties in a criminal trial
A
- Prosecution and accused
- Must always comply with the rules of the court and orders of the judge
-
Roles
- Disclose information to the accused
- Participate in trial or hearing
- Make submissions about sentencing
17
Q
What are the strengths of the parties in a criminal trial?
A
- Prosecutor has obligations to disclose information to accused
- Prevents ‘trial by ambush’ - element of surprise with evidence
- Both parties have opportunity to present
- Accused has no obligation to present evidence or say anything in the trial
18
Q
What are the weaknesses of the parties in a criminal trial?
A
-
Early and adequate disclosure is an issue
- Police often wait to see what the defence requests rather than providing disclosure upfront
- Processes are complex and difficult to understand without a lawyer
- Party control and the right to silence may mean that the truth does not come out
19
Q
Describe the impact of costs in a criminal trial
A
- Cost of legal representation is main
- Greatest financial impact on accused
- Everyone has the right but not everyone can afford
- May apply to VLA, CLC or pro bono - But does not guarantee representation
20
Q
What are the measures to address costs in a criminal trial?
A
- Free legal aid through VLA and CLC
- Courts and judges have adjusted processes to accommodate for self-represented parties
- Committal proceedings and plea negotiations filter out cases not necessary for court
21
Q
Describe the impact of time in a criminal trial
A
-
Court delays
- Gathering evidence
- Locating and interviewing witnesses
- Determining what happened
- Deciding the charges
- More complicated cases take longer
- COVID-19
- County trials take around 14-16 months
22
Q
What are the measures to address delays in a criminal trial?
A
- Plea negotiations
- Early guilty plea
- COVID-19 → Judge-alone trials
- Digital technology enables remote hearings
23
Q
Describe the impact of cultural differences in a criminal trial
A
-
First Nations
- Language Barriers - Words have different meanings
- Direct Questioning - Polite to settle group agreement thought discussion and storytelling
- Body language - Direct eye contact seen as disrespectful
- Cultural taboos - Taboo to mention names of deceased peoples or gender-based knowledge
- Lack of understanding of Court Proceedings
-
Language Barriers
- Born overseas - Language other than English as first language
- Affects understanding of documents, following court procedures and understanding legal terminology
- Victims struggle to understand rights
- Born overseas - Language other than English as first language
24
Q
What are the measures to address cultural differences in a criminal trial?
A
- Koori Court
-
Free interpreters
- But access can vary from court to court
- Online and in-person VLA and CLC information is provided in many languages
25
Q
Describe the purposes of sanctions
A
-
Deterrence
- General - Discourage the community
- Specific - Discourage the offender
-
Rehabilitation
- Address underlying reasons for the offending and treat the offender
- Assist offenders to change their attitudes and behaviour
- E.g CCO
-
Protection
- Safeguard the community from an offender
- Depriving freedom will ensure protection of victims and wider community
- E.g Imprisonment, non-custodial sentences that keep offender occupied
-
Punishment
- Penalise offender - Give community opportunity to seek revenge against the offender through the legal system
- Ensures that the victim does not feel the need to take matters into their own hands
- Has to be proportionate to the crime and within the law
-
Denunciation
- Publicly condemn the offender’s behaviour
- Highlight how the action went against the moral and ethical standards of society
- Judge will make comments stating the extent of disapproval
26
Q
What is a fine (include considerations)?
A
- Sanction requiring offender to pay an amount of money to the state
-
Considerations
- Purposes that the court wishes to achieve
- Any aggravating or mitigating factors
- Offender’s ability to pay
- Any previous precedents set for the same offence
27
Q
What is a Community Corrections Order (CCO)?
A
- Supervised sentence served in the community that includes special conditions
- Non-custodial sentence imposed for any offence punishable by more than 5 penalty units
- If offender fails to comply, it can be cancelled
28
Q
What are the core conditions for a CCO?
At least 3-4
A
- Offender must not commit another offence punishable by imprisonment
- Offender must report to a specified community corrections centre within 2 days of the order coming into force
- Must report to and receive visits from a community corrections officer
- Must notify an officer of a change in address
- Must not leave Victoria without permission
- Must comply with any directions
29
Q
What is imprisonment?
A
- Removing offender from society for a stated period of time and placing them in prison
- Longer than 2 years - Must also state a minimum non-parole period
-
Terms
- Cumulative - 2 sentences served one after another
- Concurrent - Served at the same time as one or more
- Indefinite - No fixed date → Serious offenders
30
Q
What are factors considered by a judge while sentencing?
A
-
Aggravating
- Increase in sentence
- Such as → Lack of remorse, vulnerabilities of the victim, being motivated by hatred or prejudice
-
Mitigating
- Decrease in sentence
- Such as → No prior convictions, acting under duress, offender is young or has disability
-
Victim Impact Statements
- Statements written to show the full impact of the offence on the victim
- Any injury, loss or damage suffered
-
Guilty Pleas
- Early → Reduced sentence almost guaranteed
- During Trial → Increased sentence is likely
- Considerations include time, money and resources that it saves the State in the event of no trial
