U3AOS1B - Criminal Justice System (Parties and Sentencing)

Question 1

What is the order of the court hierarchy?

Answer 1

• Magistrate’s
  
  • Coroners
  • Children’s
• County
• Supreme (Trial)
• Supreme (Appeal)
• High Court (Federal)

Question 2

What is jurisdiction?

Answer 2

• 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

Question 3

What is the criminal jurisdicition of the Magistrates’ Court?

Answer 3

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

Question 4

What is the criminal jurisdiction of the County Court?

Answer 4

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

Question 5

What is the criminal jurisdiction of the Supreme Trial Court?

Answer 5

• Original
  
  • Serious indictable - All that the County Court cannot hear
• Appellate
  
  • From Magistrates’ on points of law

Question 6

What is the criminal jurisdiction for the Supreme Appeal Court?

Answer 6

• Appellate
  
  • From County
  • From Supreme (Trial)
  • From Magistrates’ where th Chief Magistrate decided the case

Question 7

What are the reasons for the court hierarchy in criminal law?

Answer 7

• 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)

Question 8

What are the advantages of a court hierarchy?

Answer 8

• Allow courts to specialise
  
  • More efficient processes or resources
• Allow appeals to be made

Question 9

What are the disadvantages of a court hierarchy?

Answer 9

• 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)

Question 10

Describe the role of a judge in a criminal trial

Answer 10

• Individual appointed to conduct trials and resolve legal disputes
• Roles
  
  • Act impartially
  • Manage trial/hearing
  • Decide or oversee the outcome
  • Sentence an offender

Question 11

What are the strengths of a judge in a criminal trial?

Answer 11

• 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

Question 12

What are the weaknesses of a judge in a criminal trial?

Answer 12

• 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

Question 13

Describe the role of a jury in a criminal trial

Answer 13

• 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

Question 14

What are the strengths of a jury in a criminal trial?

Answer 14

• 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

Question 15

What are the weaknesses of a jury in a criminal trial?

Answer 15

• 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

Question 16

Describe the role of the parties in a criminal trial

Answer 16

• 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

Question 17

What are the strengths of the parties in a criminal trial?

Answer 17

• 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

Question 18

What are the weaknesses of the parties in a criminal trial?

Answer 18

• 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

Question 19

Describe the impact of costs in a criminal trial

Answer 19

• 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

Question 20

What are the measures to address costs in a criminal trial?

Answer 20

• 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

Question 21

Describe the impact of time in a criminal trial

Answer 21

• 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

Question 22

What are the measures to address delays in a criminal trial?

Answer 22

• Plea negotiations
  
  • Early guilty plea
• COVID-19 → Judge-alone trials
• Digital technology enables remote hearings

Question 23

Describe the impact of cultural differences in a criminal trial

Answer 23

• 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

Question 24

What are the measures to address cultural differences in a criminal trial?

Answer 24

• 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

Question 25

Describe the purposes of sanctions

Answer 25

* **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**

Question 26

What is a fine (include considerations)?

Answer 26

* *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

Question 27

What is a Community Corrections Order (CCO)?

Answer 27

* **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**

Question 28

What are the core conditions for a CCO? ## Footnote At least 3-4

Answer 28

* 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**

Question 29

What is imprisonment?

Answer 29

* **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

Question 30

What are factors considered by a judge while sentencing?

Answer 30

* **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