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Legal Studies U3/4 > U3AOS1B - Criminal Justice System (Parties and Sentencing) > Flashcards

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)
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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
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3
Q

What is the criminal jurisdicition of the Magistrates’ Court?

A
  • Original
    • All summary offences
    • Indictable heard summarily
    • Committal proceedings
    • Bail
    • Warrant
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4
Q

What is the criminal jurisdiction of the County Court?

A
  • Original
    • Indictable except…
      • Murder
      • Attempted murder
      • Certain conspiracies
      • Corporate
  • Appellate
    • From Magistrates’ on conviction or sentence
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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
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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
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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
  • 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)
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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
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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)
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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
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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
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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
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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
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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
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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
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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
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

Legal Studies U3/4 (8 decks)

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