Unit 1 - Chapter 4 - The Courtroom

Question 1

What is a coroner?

Answer 1

A person who investigates:
. sudden or suspicious deaths
. deaths as a result of anaesthetic
. deaths in custody or psychiatric institutions
. deaths where a doctor has been unable to pinpoint the cause of death
. fires that involved death

Question 2

What is the court hierarchy?

Answer 2

The ranking of courts according ti the seriousness of the matters they deal with.

Question 3

What is a challenge for cause?

Answer 3

A challenge of a prospective juror with a legitimate reason for challenge.

Question 4

Who is the accused?

Answer 4

The person defending a criminal case.

Question 5

What is jursidiction?

Answer 5

The extent of the power of a court; may also refer to the region in which the court holds power.

Question 6

What is a peremptory challenge?

Answer 6

A challenge of a prospective juror without giving a reasons for the challenge.

Question 7

What is Prima Facie Case?

Answer 7

On the face of it; there is a sufficient evidence to suggest that the accused has committed a crime.

Question 8

What is propensity evidence?

Answer 8

Evidence about a person’s propensity to commit a crime; may include prior convictions.

Question 9

What are summary offences?

Answer 9

Minor crimes that are heard in the Magistrates Court before a Magistrate.

Question 10

How is an offence classified and determined to be tried summarily?

Answer 10

By statute.

Question 11

What are indictable offences heard summarily?

Answer 11

. They are serious offences which can be heard as if they were minor offences
. it is quicker and cheaper to have it in the Magistrates court and the court maximum penalty is less (no more than 2 years for an offence, or 5 for multiple offences)

Question 12

What crimes are indictable but can be tried summarily?

Answer 12

. indictable offences punishable by 10 years or less imprisonment or a fine of $120,000 or less (or both)
. any crime listed under listed under schedule 2 of the Criminal Procedures Act.

. both the court and the accused must agree to and indictable offence being appropriate to be heard summarily

Question 13

What are examples of indictable offences?

Answer 13

. theft-related offences over $100,000
. rape
. kidnapping 
. blackmail
. intentionally causing serious injury 
. trafficking or cultivating drugs 
. murder and manslaughter

Question 14

What are examples of summary

Answer 14

offences?
. traffic offences
. offensive behaviour or language in public
. wilful damage to property (under $5000)
. bill posting
. being drunk in a public place
. passing valueless cheques
. setting off fireworks in a public place without permission

Question 15

What are examples of indictable offences that can be heard summarily?

Answer 15

. theft under $100,000 or theft of a motor vehicle
. burglary involving theft where stolen property is valued at less that $100,000
. handling stolen goods valued less than $100,000
. recklessly causing serious injury
. possessing, trafficking or cultivating illegal drugs (less than commercial quantities)
. extortion with threats to kill
. prohibited persons possessing, carrying and/or using an unregistered firearm

Question 16

What is court hierarchy?

Answer 16

. The court system provides a means of resolving disputes and enforcing the law peacefully without resorting to violence.
. It includes a variety of courts that have different areas of expertise and are suitable for different types of disputes.
. In Australia it is arranged so the higher courts hear more serious and complicated cases whilst the lower courts deal with everyday issues.

Question 17

What are the reasons for court hierarchy?

Answer 17

. allows for specialisation
. courts developing expertise in dealing with the types of cases that come before them
. it also allows parties in a court case to appeal to a higher court if they are not satisfied with the decision in the lower court.
. Furthermore, it is also a necessary part of the doctrine of precedent (law making through courts) because the process of law making through the courts depends on the decisions being made in a higher court as they bind the lower courts.

Question 18

What are indictable offences?

Answer 18

More serious offences that must be heard by a judge and jury.

Question 19

What is the Victorian Hierarchy of courts?

Answer 19

. high court
. supreme court (court if appeal)
. supreme court (trial division)
. county court
. magistrates court (also coroner's court and children's court)

Question 20

What is the criminal jurisdiction of the Magistrates’ Court?

Answer 20

. 1 magistrate 
Original jurisdiction: 
. summary offences 
. indictable offences heard summarily
. committal proceedings 
. bail applications
. issuing warrants
Appellate jurisdiction:
. no appellate jurisdiction

Question 21

What is the criminal jurisdiction of the children’s court?

Answer 21

Original Jurisdiction
. children between 10 and 18
Appellate Jurisdiction
. no appellate jurisdiction

Question 22

What is the criminal jurisdiction of the coroner’s court?

Answer 22

Original Jurisdiction
. investigation of deaths and fires
Appellate Jurisdiction
. no appellate jurisdiction

Question 23

What is the criminal jurisdiction of the County Court?

Answer 23

. 1 judge with a jury of 12 when the plea is ‘not guilty’
Original Jurisdiction
. indictable offences, except murder and attempted murder, certain conspiracies, corporate offences
Appellate Jurisdiction
. from the Magistrates Court against a conviction or sentence (1 judge)

Question 24

What is the criminal jurisdiction of the supreme court (trial division)?

Answer 24

. 1 Justice with a jury of 12 when the plea is ‘not guilty’
Original Jurisdiction
. serious indictable offences - mainly murder cases
Appellate Jurisdiction
. on points of law from the Magistrate’s Court (1 Justice)

Question 25

What is the Criminal Jurisdiction of the Supreme Court (Court of Appeal)?

Answer 25

Appellate Jurisdiction
. with leave - on a point of law, conviction, severity or leniency of sanction, from a single judge of the County Court or Supreme Court

Question 26

Why does the Magistrate’s court have specialist divisions?

Answer 26

The Magistrates’ Court has specialist divisions to streamline processes and to use the expertise of court to support staff.

Question 27

What are the specialist divisions of the Magistrate’s Court?

Answer 27

. koori court
. drug court
. family violence court
. sexual offences list
. assessment and referral court list
. neighbourhood justice centre

Question 28

What are the pre-trial procedures?

Answer 28

. bail
. remand
. committal proceeding

Question 29

What is bail?

Answer 29

Bail is the release of an accused person from legal custody on the understanding that he or she will appear at their hearing or trial.

Question 30

When can bail be granted?

Answer 30

At various stages of the criminal process including:
. the time of arrest
. during the trial
. and while awaiting sentencing or an appeal

Question 31

Who grants bail?

Answer 31

A senior police officer, a bail justice or a court.

Question 32

Why might bail be refused?

Answer 32

Bail may be refused if the accused is:
. charged with murder or treason 
. charged with drug trafficking
. already in custody for another crime 
. considered to be an unacceptable risk to society or is likely to abscond, commit an offence while on bail, endanger the safety or welfare of members of the public, interfere with witnesses or otherwise obstruct the course of justice in relation to themselves or to others

Question 33

What is a surety?

Answer 33

This is where the accused is granted bail but a family member or friend promises to pay a sum of money of the accused fails to attend court. This ensures the accused actually turns up to court,

Question 34

What are conditions of bail?

Answer 34

These are tailored to suit the accused and may require the accused to:
. deposit to deposit money
. live at a particular address
. report to a police station on a regular basis 
. stay away from a victim or witnesses
. abstain from alcohol or drug use
. surrender his or her passport
. comply with a curfew 
. attend support services

Question 35

What is remand?

Answer 35

This is the holding of a suspect in custody until the case comes to trail, or until bail is granted.

Question 36

What is the purpose of remand?

Answer 36

To protect the community from someone who may reoffend and to ensure that the suspect appears in court for trial.

Question 37

What are committal proceedings?

Answer 37

. This is used for indictable offences that will go to trial in the County or Supreme Court.
. It may involve different types of hearings in the Magistrate’s Court, which determine whether a case is ready for trial.

Question 38

What are the hearings which may be heard in committal proceedings?

Answer 38

. filing hearing
. compulsory examination hearing
. committal mention hearing
. committal hearing
. special mention hearing

Question 39

Explain the following committal proceeding: Filing hearing

Answer 39

. This is the first step in a committal proceeding for any indictable offence that must go to trial
. or cases where the accused or Magistrate prefers to have the matter determined in a superior court.
. At this hearing the Magistrates’ Court
- fixes a date for a committal mention hearing,
- fixes a time for the services of a hand up brief
- and makes any other determination in relation
to the progress of the case.

Question 40

Explain the following committal proceeding: Compulsory examination hearing

Answer 40

. The prosecution can request a special hearing to compel reluctant witnesses to provide evidence.
. The witnesses’ oral evidence is recorded by way of an examination-in-chief and is not cross examined at this time.
. This steps assts the prosecution to provide all witness statements to the accused in the hand-up-brief.

Question 41

Explain the following committal proceeding: Committal mention hearing

Answer 41

The prosecution and the accused must attend this hearing unless excused. This is the management phase of a committal proceeding
At this hearing the court considers whether:
. the accused has taken reasonable steps to obtain legal representation
. witnesses will give oral evidence
. the case should be heard summarily
. other orders or directions are required

Question 42

What happens before the committal mention hearing?

Answer 42

. The parties are required to discuss the case and prepare a joint case directions notice which outlines the outcome of the discussions.
. In addition, the court may direct the parties to appear at a committal case conference where informal discussions are held with a magistrate in an attempt to resolve issues and eliminate lengthy delays.

Question 43

What happens if the accused pleads guilty at the committal mention hearing?

Answer 43

The magistrate will then conduct the committal hearing and the early guilty plea will be taken into consideration when sentencing.

Question 44

What happens if the accused pleads not guilty at the committal mention hearing?

Answer 44

The Magistrate will fix a date for a committal hearing and determine any objections to the disclosure of material.

Question 45

Explain the following committal proceeding: Committal hearing

Answer 45

. The committal hearing relies heavily on the material contained in the hand-up-brief, which is served on the accused before the hearing.
. However, if leave has been granted for witnesses to be cross-examined, selected witnesses will attend court to give oral evidence.
. The prosecution and the accused’s counsel present evidence, make their submissions in written form and question the witnesses.
. The witnesses are examined-in-chief, cross-examined and re-examined.
. Following this, the court determines whether the police evidence is of sufficient weight to support a conviction by a jury at trial.

Question 46

What happens if the prosecution has sufficient evidence to support a conviction?

Answer 46

If it is decided that the evidence is of sufficient weight, a prima facie case exists to send the accused to trial. The accused will either be held on remand or released on bail until the date of trial.

Question 47

What happens if the prosecution doesn’t have sufficient evidence to support a conviction?

Answer 47

If the court finds the evidence will not support a conviction at trial, the accused is released subject to the discovery of additional evidence.

Question 48

Explain the following committal proceeding: Special mention hearing

Answer 48

. Special mention hearings are to be conducted as required.
. The Magistrates’ Court may use a special mention hearing to make any order or give any direction as part of its case management processes including the immediate determination of a committal proceeding.
. Either party can also request a special mention hearing to alert the court to an issue that affects compliance with orders or directions.

Question 49

What is a Hand-up brief?

Answer 49

A hand-up brief contains:
. the date of the committal mention hearing
. information relating to the importance of obtaining legal representation
. a copy of the charge sheet
. copies of documents the prosecution intends to produce as evidence
. copies of witness statements
. interview transcripts
. photographs
. and a list of exhibits.
It also informs the accused of future hearing dates and their purposes.

Question 50

What has the Hand-up brief done?

Answer 50

It has largely eliminated the need for oral evidence.

Question 51

What are summary hearings?

Answer 51

. charge and summons

. mention court procedure

Question 52

What is a summons?

Answer 52

A document telling the accused which court will deal with their criminal case and the mention date (date of hearing).

Question 53

What is a mention court procedure (or mention date)?

Answer 53

This is where the prosecutor usually gives the accused a preliminary brief which includes a copy of the charge sheet, information about the importance of obtaining legal representation, a summary of the case against the accused and the accused’s prior convictions so that the accused can make a decision on how to proceed. This is summary offences or indictable offences triad summarily.

Question 54

What is a barrister?

Answer 54

A person who is briefed (given all the information about a case) by a solicitor and who will appear in court in behalf of the client.

Question 55

How do criminal trial procedures begin?

Answer 55

It no longer begins with the filing of an indictment (a formal written document which accuses a person of a serious crime and orders them to stand trial). The trial actually starts when the accused pleads not guilty in the presence of the jury panel (potential jurors in the courtroom).

Question 56

What happens if the accused pleads guilty in a criminal trial?

Answer 56

No jury is required as the accused has admitted guilt. The prosecution presents a summary of the evidence, prior convictions are read out and the judge decides on a sentence.

Question 57

What happens if the accused pleads not guilty in a criminal trial?

Answer 57

. the cases is called and appearances are entered
. the accused is arraigned
. a jury is empanelled
. the trial judge usually addresses the jury
. opening addresses are made
. the prosecutor calls the crown witnesses
. a no-case submission may be made
. the accused’s counsel calls witnesses
. requests for particular jury may be made
. closing addresses are made
. the judge sums up and directs the jury
. the jury retires to consider its verdict
. the jury gives its verdict
. pre-sentencing
. sentencing

Question 58

Explain the following criminal trial procedure: The case is called and appearances are entered

Answer 58

The prosecutor announces that he or she appears on behalf of the Crown. The accused’s counsel announces that he or she appears on behalf of the accused.

Question 59

Explain the following criminal trial procedure: The accused is arraigned

Answer 59

The accused is named and the charges in the indictment are read out. The accused is asked to plead guilty or not guilty. If the accused pleads
not guilty the jury is selected.

Question 60

Explain the following criminal trial procedure: A jury is empaneled

Answer 60

The jury is chosen from a panel of jurors whose suitability is scrutinised
during the empanelment process. In criminal cases there are 12 jurors, although up to 15 jurors may be empanelled ‘for any reason that appears to the court to be good and sufficient’. This allows the trial to proceed if jurors become ill or die (a trial can continue if a jury is reduced to 10; any lower, and a retrial must be ordered).

Question 61

Explain the following criminal trial procedure: The trial judge usually addresses the jury

Answer 61

The judge provides basic information to help jurors understand points of law and procedure, the trial process and its participants. The judge can also do this at any stage of the trial.

Question 62

Explain the following criminal trial procedure: Opening addresses are made

Answer 62

The prosecutor gives an opening address telling the jurors what the case is about, and refers to important witnesses and evidence. The accused’s counsel responds to the prosecutor’s opening address. The accused’s counsel has the right to reply to the opening speech of the prosecutor to outline issues in the trial and indicate briefly the facts, and the inferences which can be made from those facts, that are not contested.

Question 63

Explain the following criminal trial procedure: The prosecutor calls the crown witnesses

Answer 63

Each witness is sworn in (this involves the witness swearing an oath, or making an affirmation if the witness does not hold religious beliefs), examined-in-chief (by the prosecutor), cross-examined (by the accused’s counsel) and re- examined (by the prosecutor).

Question 64

Explain the following criminal trial procedure: A no-case submission may be made

Answer 64

If the accused’s counsel feels that the prosecution has not proved the guilt of the accused, he or she can submit to the court that there is no case to answer. If this is accepted by the court, the charge is dismissed; if not, the case proceeds.

Question 65

Explain the following criminal trial procedure: The accused’s counsel calls witnesses

Answer 65

Each witness is sworn in, examined-in-chief (by the accused’s counsel), cross-examined (by the prosecutor) and re-examined (by the accused’s counsel). The accused can choose to give sworn evidence and be cross-examined, or remain silent.

Question 66

Explain the following criminal trial procedure: Requests for a particular jury directions may be made

Answer 66

The accused’s counsel and the prosecution are required to highlight any issue in dispute relating to the alleged offence or any defence applicable in the case and ask the judge to give (or not give) a specific jury direction on matters relevant to each of their cases. The judge must give a requested jury direction, unless there is good reason for not doing so.

Question 67

Explain the following criminal trial procedure: Closing directions are made

Answer 67

The prosecutor and the accused’s counsel address the court with closing speeches. The prosecutor addresses the court first. Both counsels explain to the jury the important parts of the evidence that support their case.

Question 68

Explain the following criminal trial procedure: The judge sums up and directs the jury

Answer 68

The judge will give the jury information about the burden and the standard of proof, and will review the roles of the jury, judge and legal counsel. The judge decides which issues in dispute (identified by legal counsel) are real issues and explains these issues, and any relevant law, to the jury. The judge is required to give a broad and fair overview of how the prosecution and the accused’s counsel argued their case but is not required to summarise all the evidence. The judge need only explain as much of the evidence as is relevant to the issues in dispute. If the trial judge believes that there is insufficient evidence against the accused for a jury to return a guilty verdict, he or she can direct the jury to acquit the accused. The jury does not have to follow this direction (although in practice the jury does follow it). The judge cannot direct the jury to find a verdict of guilty.

Question 69

Explain the following criminal trial procedure: The jury retires to consider its verdict

Answer 69

The jurors go into the jury room. They may request copies of various documents to assist them in their deliberations. The jury must:
. discuss all the evidence
. decide on questions of fact; that is, whether they believe the accused is ‘guilty’ or ‘not guilty’
according to the evidence
. apply the law
. reach a verdict.

Question 70

Explain the following criminal trial procedure: The jury gives its verdict

Answer 70

If the accused is found not guilty, he or she is free to leave the court, and cannot be tried again for the same offence (double jeopardy rule, although a retrial can take place in limited circumstances).

Question 71

Explain the following criminal trial procedure: Pre-sentencing

Answer 71

If the accused is found guilty, prior convictions are heard. Before sentencing, a plea for leniency may be made and character witnesses may be called.

Question 72

Explain the following criminal trial procedure: Sentencing

Answer 72

The trial judge passes sentence.

Question 73

What is double jeopardy?

Answer 73

This allows, in limited circumstance, for a person to face a retrial for the same offence despite a previous acquittal.

Question 74

Why might an appeal be made?

Answer 74

If the accused or the prosecution is not happy with the decision made by the court.

Question 75

How can an appeal be made?

Answer 75

The accused or prosecutor may appeal:
. on a point of law (the interpretation of the law)
. on a point of fact (that facts of the case)

Question 76

What are the special names when an appeal is made?

Answer 76

Appellant and Respondent.

Question 77

Where can appeals from the Magistrates’ Court be made to?

Answer 77

. The County Court on a point of fact

. The Supreme Court on a point of law

Question 78

Where can appeals from the County Court be made to?

Answer 78

. Court of Appeal (3 judges) on point of law or a point of fact

Question 79

Where can appeals from the Supreme Court be made to?

Answer 79

Court of Appeal.

Question 80

Rights in criminal proceedings.

Answer 80

The Victorian Charter of Human Rights and Responsibilities protects human rights, although these may be limited if the limits can be demonstrably justified in a free and democratic society, based on human dignity, equality and freedom, and taking into account all relevant factors such as the nature of the right and the purpose of the limitation.

Question 81

Where can appeals from the Court of Appeal be made to?

Answer 81

The High Court if leave is granted by the High Court.

Question 82

What are some of the rights within the criminal justice system? (there are 11)

Answer 82

. equality before the law
. right to liberty and security of person
. protection from torture and cruel, inhuman or degrading treatment
. humane treatment when deprived of liberty
. children in the criminal process
. a fair hearing
. rights in criminal proceedings
. right not to be more punished more than once
. retrospective criminal laws
. statement of compatibility
. interpretation of the law

Question 83

How is the following right protected: Equality before the law

Answer 83

This is protected because:
. there are restrictions on police questioning
. criminal proceedings are presided over by a Judge or Magistrate
. Everyone is bound by rules of evidence in court of law
. rules of procedure give each party the opportunity to cross-examine witnesses to try and bring out the truth
. a jury is asked to put aside all biases and make judgement on the facts

Question 84

Explain the following right within the criminal justice system: Right to liberty and security of person

Answer 84

Everyone is entitled to liberty and security and must not be subject to arbitrary arrest or detention. A person who is detained must be promptly informed of the reason for the detention and must be brought before a court promptly.

Question 85

How is the following right protected: Right to liberty and security of person

Answer 85

This is protected because:
. Every person being questioned by the police must be released unconditionally, released on bail or brought before the Magistrates’ Court within a reasonable time.
. A person must be cautioned as to his or her right to silence and informed of the reason for his or her detention.

Question 86

Explain the following right within the criminal justice system: Protection from torture and cruel, inhuman or degrading treatment

Answer 86

A person must not be subjected to torture or treated or punished in a cruel, inhuman or degrading way or subjected to medical or scientific experimentation without full and free consent.

Question 87

How is the following right protected: Protection from torture and cruel, inhuman or degrading treatment

Answer 87

This is protected because:
. There are restrictions on police questioning; any torture or treatment in a cruel way would be an assault and could lead to the police officer being charged.
.The Sentencing Act 1991provides guidelines relating to fair punishment for a person who has been found guilty.
. Maximum and minimum penalties for crimes are provided under Acts of parliament.

Question 88

Explain the following right within the criminal justice system: Humane treatment when deprived of liberty

Answer 88

All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person. An accused person who is detained or a person detained without charge must be treated in a way that is appropriate for a person who has not been convicted.

Question 89

How is the following right protected: Humane treatment when deprived of liberty

Answer 89

This is protected because:
. Our criminal law revolves around a presumption of innocence
. Suspects who have not been found guilty, but are held in prison, are held at a remand centre, away from convicted criminals.
. The Bail Act 1977 provides for bail for most suspects and allows the courts to remand a suspect in custody only in certain circumstances, where, for example, it is thought necessary to protect the community or witnesses from the suspect.

Question 90

Explain the following right within the criminal justice system: Children in the criminal process

Answer 90

An accused child who is detained or a child detained without charge must be segregated from all detained adults, must be brought to trial as quickly as possible and must be treated in a way that is appropriate for his or her age.

Question 91

How is the following right protected: Children in the criminal process

Answer 91

This is protected because:
. Children who are held on remand are taken to a youth justice centre where they will be provided with counselling and legal assistance.
. The Criminal Procedure Act 2009 is aimed at speeding up the justice system by requiring police to commence Children’s Court proceedings within six months of a summary offence.
. Under the age of 18, children who have been convicted and sentenced to detention are held in youth justice centres designed to cater for the needs of children in detention, rather than adult prisons.

Question 92

Explain the following right within the criminal justice system: A fair hearing

Answer 92

A person charged with a criminal offence or a party to a civil proceeding has the right to have the proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Question 93

How is the following right protected: A fair hearing

Answer 93

This is protected because:
. Hearings and trials or courts and tribunals are presided over by an independent arbitrator
. In most cases the courts are open courts for the public to see the proceedings
. Members of the media that report particular details of a court hearing while it is progressing could be found to be in contempt of court and could be charged

Question 94

How is the following right protected: Rights in criminal proceedings

Answer 94

. presumption of innocence
. informed promptly of the offence
. communicate with a lawyer
. tried without delay
. tried in person

Question 95

How is the following right protected: Right not to be punished more than once

Answer 95

. Double jeopardy rules protect against a person being charged again for the same set circumstances once he or she has been acquitted or convicted, although if there is compelling DNA evidence, for example, a person can be tried again.

Question 96

How is the following right protected: Retrospective criminal laws

Answer 96

. This provision is applied through the courts. A court will be informed if the offence was not in existence at the time the act was carried out.

Question 97

Explain the following right within the criminal justice system: Interpretation of laws

Answer 97

So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

Question 98

How is the following right protected: Statement of capability

Answer 98

. The statement of compatibility is considered before the second reading of a Bill. This statement must indicate whether, in the member’s opinion, the Bill is consistent with the Charter of Human Rights and Responsibilities and, if so, how it is consistent, or, if the member considers that the Bill is inconsistent with human rights, the nature and extent of the inconsistency.

Question 99

What does the accused’s decision in the mention court determine?

Answer 99

If the accused pleads guilty at the mention court, then the case will be dealt with immediately, whilst if the accused pleads not guilty the case is deferred.

Question 100

How is the following right protected: Interpretation of the law

Answer 100

. Individuals in the community can voice any discontent with regard to any legislation that is not compatible with human rights.

Question 101

What is the adversary system?

Answer 101

It is a system based on the two parties to a civil dispute or a criminal case battling to win the case, each party act as the adversary of the other. In a criminal case it the accused is found guilty, the prosecution has won the battle and of the accused is found not guilty, the accused has won the battle.

Question 102

What are the key features of the adversary system?

Answer 102

. the role of the parties
. the role of the judge
. the need for legal representation
. the rules of evidence and procedure
. the burden and standard of proof.

Question 103

Explain the following feature of the adversary system: Role of the parties

Answer 103

Each party has control of their own case. As long as the rules of evidence and procedure are followed, each party (accused and prosecution) can decide:
. how to investigate the facts of the case
. how many witnesses to call in the hearing or trial
. what sort of evidence to bring out
. whether to have legal representation
. the method employed to bring out the evidence.

Question 104

Explain the following feature of the adversary system: Role of the judge

Answer 104

The role of the judge is an essential element of the adversary system. There must be an independent umpire (the judge or magistrate) to ensure that the case is conducted according to the rules of evidence and procedure, and that both sides are treated fairly.

Question 105

Explain the following feature of the adversary system: The need to legal representation

Answer 105

Each party should be represented by legal representatives with equal skill and efficiency. In this way, they are able to present the best evidence in support of their case and expose the truth. If the parties are not equally represented then the person with the most skilled legal representative may win the case, regardless of the truth. If a serious crime has been committed, the prosecution may use a highly skilled barrister to prosecute the case.

Question 106

Explain the following feature of the adversary system: The rules of evidence and procedures

Answer 106

The rules of evidence ensure that only evidence that is relevant to the case is heard by the court. Prior convictions are not able to be heard by the court until the sentencing stage, because they may unduly influence the magistrate or judge and jury against the accused.

Question 107

Explain the following right within the criminal justice system: Statement of compatibility

Answer 107

A minister who introduces a Bill to parliament must prepare a statement of compatibility with the Charter of Human Rights and Responsibilities, which is discussed in parliament.

Question 108

Explain the following right within the criminal justice system: Equality before law

Answer 108

Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

Question 108

Explain the following right within the criminal justice system: Rights in criminal proceedings

Answer 108

A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. A Person charged with a criminal offence is entitled without discrimination to the following minimum guarantees:
. to be informed promptly and in detail
of the nature and reason for the charge
. to have adequate time and facilities
to prepare his or her defence
. to be tried without unreasonable delay
. to be tried in person, and to defend themselves
personally or through legal assistance
. to be told, if he or she does not have legal assistance, about the right, if eligible, to legal aid under the Legal Aid Act
. to have legal aid provided if the interests
of justice require it
. to examine, or have examined, witnesses against him or her, unless otherwise provided for by law
. to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses for the prosecution
. to have the free assistance of an interpreter if he or she cannot understand or speak English
. to have the free assistance of assistants and specialised communication tools and technology if he or she has communication or speech difficulties that require such assistance
. not to be compelled to testify against himself or herself or to confess guilt

Question 108

Explain the following right within the criminal justice system: Right not to be punished more than once

Answer 108

A person must not be tried or punished more than once for an offence in respect of which
he or she has already been finally convicted or acquitted in accordance with law, although a retrial can be ordered in limited circumstances.

Question 108

Explain the following right within the criminal justice system: Retrospective criminal laws

Answer 108

A person must not be found guilty of a criminal offence because of conduct that was not a criminal offence when it was engaged in. A penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed.

Question 108

What are the advantages of the adversary system?

Answer 108

. the truth should emerge through questioning of the witnesses
. it relies on oral evidence (easier to see of witness is lying or telling the truth)
. each party is in control of their own case (more satisfaction)
. the decision-makers are impartial (more public confidence)

Question 108

Explain the following feature of the adversary system: Standard and burden of proof

Answer 108

The burden of proof relies with the prosecution in criminal cases unless under circumstances where the onus is reversed. The standard of proof to which all criminal cases must be proven is beyond reasonable doubt.

Question 109

What are the disadvantages if the adversary system?

Answer 109

. unequal representation (legal representative bot always well prepared)
. the truth may not emerge (due to main aim being to win)
. oral evidence may lead to incorrect assumptions (mistakes can give wrong impression)
. the high cost of proceedings
. the legal expertise of judges is underused (can’t ask too many questions as they can be seen as favouring a side which is grounds for an appeal)

Question 110

How can the adversary system lead to a miscarriage of justice?

Answer 110

It has been said that a trial using the adversary system can be compared to a stage with the two main protagonists (the prosecutor and the accused’s counsel) as the actors, and the jury awards the case to the side which puts on the best show. This process can sometimes result in a miscarriage of justice if:
. the case for the accused is rushed or put together in a short time
. one side withholds evidence, is late in disclosing evidence or fabricates evidence
. unreliable forensic procedures lead to the conviction of the wrong person
. an over-reliance on expert evidence serves to confuse rather than clarify the issue in dispute.

Question 112

What are the different court personnel?

Answer 112

. barrister
. bench clerk
. court reporter 
. judge/magistrate/justice
. judicial registrar
. judge's associate 
. prosecution
. prothonotary 
. registrar
. solicitor or duty solicitor
. tipstaff

Question 113

What is a bench clerk?

Answer 113

They work in the Magistrates’ court and the children’s court and announce the cases and call people into court. They also help the magistrate draw up paperwork, swear in witnesses and direct people where to stand.

Question 114

What is a barrister?

Answer 114

A person who is briefed (given all the information about a case) by a solicitor and who will appear in court on behalf of the client.

Question 115

What is a judge/magistrate/justice?

Answer 115

They conduct trials and ensure the rules of evidence and procedure are followed. In a criminal trial they decide on a sanction whilst in a civil trial they decide the outcome of the case.

Question 116

What is the a prosecutor?

Answer 116

A person who brings the case for the crown against the accused.

Question 117

What are tipstaff?

Answer 117

They announce that the court is in session and administer oaths or affirmations to witnesses in the county or supreme court, An important duty of the tipstaff is to look after the jury.

Question 118

What are solicitors?

Answer 118

Legal professionals who can offer assistance to people with legal problems.

Question 119

What is a jury?

Answer 119

A group of 12 people used to make a decision in relation to a criminal case which reflect the values of society.

Question 120

What advice and assistance is available through legal aid?

Answer 120

. Victorian Legal Aid
. Community Legal Centres
. Victorian Aboriginal Legal Service
. Law Institute of Victoria
. Community Information Centres

Question 121

What is Victoria Legal Aid?

Answer 121

It was established to provide free legal advice to the community and low-cost legal representation to those who cannot afford to pay a lawyer. It aims to protect the rights of socially and economically disadvantaged.

Question 122

What are Community Legal Centres?

Answer 122

There are 51 community legal centres across Victoria that specialise in providing assistance to people in one or more areas of law or in a particular geographical location.

Question 123

What is the Victorian Aboriginal Legal Service?

Answer 123

The Victorian Aboriginal Legal Service (VALS) provides advice and assistance in the areas of criminal law, civil law and family law to Indigenous people across Victoria. Victoria Police will contact VALS whenever an Indigenous person is taken into custody. The provision of legal assistance is means-tested. Salaried workers generally deal with most cases.

Question 124

What is the Law Institute of Victoria?

Answer 124

The Law Institute provides an online directory to help the public find legal professionals and free fact sheets covering a range of legal topics.

Question 125

How are jurors selected?

Answer 125

. people who are registered to vote may be randomly selected for jury service from the electoral role
. people are notified in the mail and must return a questionnaire
. if eligible, they will be sent a jury summons

Question 126

What happens if a majority verdict cannot be reached?

Answer 126

There is a hung jury.

Question 127

What are the challenges with a jury?

Answer 127

This will initially be for one or two days, potential jurors will form a jury pool and as the new trial begins groups of potential jurors will be selected from this pool to form a jury panel and are taken to a court room for the final selection process. A courtroom selection process then begins where both parties in a case can either select, or object to, a particular person being on the jury.
. In a criminal case the accused’s counsel is able to challenge up to six jurors
. The prosecution is able to stand aside up to six jurors without a reason,

Question 128

What is a majority verdict?

Answer 128

This is when 11 out of 12 jurors decide the guilt or innocence of the accused. This is only allowed for criminal offences other than murder, treason, trafficking or cultivating drugs.

Question 129

Why might some people be excused from jury services?

Answer 129

. ineligible (anyone who knows legal stuff and anyone who doesn’t speak english or has a disability)
. disqualified (eg. people who have been in prison)
. excused (can apply to be excused with good reason such as ill health)

Question 130

What are the advantages of a jury system?

Answer 130

. It provides a system of trial by peers
. it provides an opportunity for the general community to be involved
. it reflects community values
. it spreads the responsibility of the decision over more shoulders

Question 131

What is a unanimous verdict?

Answer 131

This is when 12 members of the jury decide the guilt or innocence of the accused.

Question 132

What are the disadvantages of a jury system?

Answer 132

. it is not a true cross-section of the community
. it is difficult for jury members to understand complicated evidence
. jurors may be influenced by the arguments of clever barristers
. jurors may be influenced by the media
. jurors may have personal biases
. jurors may not follow the law

Question 133

What is the role of a criminal jury?

Answer 133

A jury must first try to reach a unanimous verdict. If this is not possible, a judge may allow a majority decision.

Criminal Trials:
To listen to all the evidence, determine the facts of the case and decide whether the accused is guilty or not guilty beyond reasonable doubt.
Civil Dispute:
To decide who is in the wrong by determining the facts of the case and base their decision on a balance of probabilities.