unit 1 exam revision Flashcards
Social cohesion
A term used to describe the willingness of members of a society to cooperate with each other.
The role of laws in social cohesion
- Provide guidelines on acceptable and unacceptable behaviour
- Establish a framework for people to live
- Laws apply to everyone
The role of individuals in social cohesion
- Individuals have a responsibility to be aware and follow laws
- Individuals are expected to respect human rights
- Individuals must assist in legal processes
The role of the legal system in social cohesion
- Deals fairly and justly with individuals
- Update laws
- Maintain social cohesion
Name the principles of justice
Fairness, equality, access
Define fairness
A principle of justice which means all people can participate in the justice system, and its processes should be impartial and open.
Features of fairness
Impartial processes, open processes and participation
Examples of fairness in the legal system
- Judges, magistrates, jury members and court personnel are impartial
- The public and the media can sit in on majority of cases
Define equality
A principle of justice which means all people engaging with the justice system and its processes should be treated in the same way; if the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow everyone to engage with the justice system without disparity or disadvantage.
Features of equality
Same treatment (“Formal equality”), Different treatment (“Substantive equality”)
Examples of equality in the legal system
Interpreters
Providing information in a different way
Changes to court processes
Different form of oath
Flexibility
Define access
A principle of justice which means that all people should be able to engage with the justice system and its processes on an informed basis; that is, they should have the means and ability to be able to use and participate in the legal system.
Features of access
Engagement, Informed basis
Examples of access
Physical access, financial access, technological access
Education (Community Legal Centers), Information, Legal and Support Services, Legal Representation
List the characteristics of an effective law
Reflect society’s values, be enforceable, be known, be stable, be clear and understood
Describe the court hierarchy
(In order of highest to lowest)
High Court, Supreme Court (Appeal), Supreme Court (Trial), County Court, Magistrates Court
Why is there a court hierarchy?
- Specialised in particular area
- Can appeal to higher court
- Efficiency
- Doctrine of precedent
Role of the courts
Primary role - To resolve disputes
Secondary role - To make common law
Statute law
A law or act passed by government
Common law
Common law is developed by judges on a case by case basis
Statuatory Interpretation
Interpreting and applying statute laws in relation to a particular case
Setting a precedent
When courts decide on an issue that does not have legislation or expand on previous legislation.
Ratio decidendi
The court’s reasoning for its decision.
Stare decisis
Let the decision stand; decisions are based on precedents from previous cases
Binding precedent
Binding precedents must be followed by courts that are lower in the same court hierarchy
A precedent is considered to be binding on a new case when:
- the material facts of the precedent are similar to the material facts of the new case
- the precedent was set in a higher court in the same hierarchy as the court hearing the new case
Persuasive precedent
Persuasive precedents do not have to be followed; courts can choose to follow them.
A precedent is persuasive when:
- a court in another state or country set the precedent (as this court is not in the same court hierarchy)
- a lower court set the precedent
the same court set the precedent.
What are the conditions where a judge can develop or avoid earlier precedents?
R - Reversing
A precedent can be reversed when the same case is taken to a higher court on appeal.
O - Overruling
A precedent can be overruled by a higher court in a different case.
D - Disapproving
In some instances, a court is bound by a precedent but expresses disagreement with the precedent. The court encouraged Parliament is change the precedent.
D - Distinguishing
If the material facts of a case are sufficiently different from the material facts in a binding precedent, a lower court may not have to follow the precedent.
Codification of common law
When parliament passes an Act of Parliament that reinforces a principle established by a court
Abrogation of common law
When parliament passes an Act of Parliament that overrides a principle established by a court
Ability of courts to influence parliament
Courts can influence changes in parliament through the comments made by judges
Define criminal law
An area of law that defines behaviours and conduct that are prohibited and outlines sanctions for people who commit them
Define civil law
An area of law that defines the rights and responsibilities of individual, groups and organisations in society and regulates private disputes
The difference between civil and criminal law
Civil law deals with disputes between individuals or entities, while criminal law deals with offenses against the state.
The relationship between civil and criminal law
Some similarities between the two legal systems include the need for evidence and the right to a fair trial.
Criminal law exists to…
- Protect individuals
- Protect property
- Protect society
- Protect justice
What is the presumption of innocence
The presumption of innocence is a guarantee by the state that if its citizens are accused of committing a crime, the will be treated as not guilty until the charge has been proved beyond a reasonable doubt.
How is the presumption of innocence protected?
- The standard of proof is beyond reasonable doubt
- The burden of proof is on the prosecution
- Police must reasonably believe a person has committed a crime before arresting them
- An accused has the right to legal representation
- An accused has the right to silence
- Previous convictions cannot be revealed in court until sentencing
- A person who has been convicted of a crime has the right to appeal
Define standard of proof
The strength of evidence needed to prove a legal case. In a criminal case, the prosecution must prove the case beyond reasonable doubt.
Define burden of proof
The burden of proof is the responsibility to prove the allegations made. In a criminal case, the burden of proof is held by the prosecution. The defense DOES NOT need to prove innocence.
Elements of crime
Actus reus, mens reus
Define actus reus
Prosecution proves that the accused physically committed the crime
Define mens reus
Prosecution proves that the accused had the intention to commit the crime
Define crime
A crime is an act or omission that is against an existing law, harmful to an individual or to society and punishable by law.
Define strict liability
Crimes of strict liability are offenses that do not have a mental element. The prosecution is only required to prove actus reus.
Give examples of strict liability crimes
Consuming alcohol while driving, fare evasion on public transport, failing to display ‘P-plates’ when driving on a probationary driver license
Define age of criminal responsibility
The age of criminal responsibility is the minimum age a person must be to be charged with committing a crime.
What is the age of criminal responsibility?
A child under the age of 10 years CANNOT be charged with a crime.
A child aged 10 to 13 years CAN be charged of a crime IF the prosecution proves the child knew their actions were wrong at the time of the crime.
A child ages 14 years or older can be charged with a crime.
How are crimes classified?
- The social purpose or nature of the offence
- The type of offender or victim
- The seriousness of the offence
Crimes against the person
Refers to a crime which is committed by direct physical harm or force being applied to another person
E.g. homicide, assault, battery
Crimes against property
Primarily concerns the destruction, damage, or theft of property
E.g. Burglary, Arson, Theft
Define indictable offences
Serious crimes generally heard and determined in the higher courts before a judge and jury
Define summary offences
Minor crimes heard and determined in the Magistrates’ Court by a magistrate
Define indictable offences heard summarily
Serious crimes which are heard in the Magistrates’ Court and determined by the magistrate without a jury.
Define murder
Murder is the unlawful and intentional killing of a human being by a person who acted voluntarily and without any lawful justification
Possible sanctions for murder
- Maximum penalty for murder is life imprisonment
- The standard sentence for murder is 25 years’ imprisonment, or 30 years’ imprisonment if the victim was an emergency worker on duty
Define culpable driving causing death
Culpable driving causing death is the act of causing the death of another person while driving a motor vehicle in a negligent or reckless manner, or while under the influence of drugs and alcohol.
Possible sanction for culpable driving causing death
- the maximum penalty for culpable driving causing death is 20 years’ imprisonment and/or a fine of 2400 penalty units (approximately $460 000).
- if the offender is aged over 18 years, the courts must sentence them to a term of imprisonment, unless they have impaired mental functioning or assisted authorities.
- the standard sentence for for culpable driving causing death is 8 years’ imprisonment
Define doli incapax
Incapable of deceit
Trends and statistics of murder in Victoria
Year | Recorded cases
2018 - 53
2019 - 59
2020 - 62
2021 - 52
2022 - 51
Trends and statistics of murder in the Northern Territory
Year | Recorded cases
2018 - 4
2019 - 4
2020 - 5
2021 - 5
2022 - 6
Significantly lower than Victoria (Potentially due to population difference)
Trends and statistics of culpable driving causing death in Victoria
Year | Recorded cases
2018 - 98
2019 - 82
2020 - 102
2021 - 80
2022 - 83
Trends and statistics of culpable driving causing death in Victoria
Year | Recorded cases
2019 - 5
2020 - 1
2021 - 1
2022 - 7
2023 - 8
Institutions that enforce criminal law
The police, other delegated bodies
Victorian Police
Victoria Police is the main institution that enforces criminal law relating to indictable offences and most summary offences in Victoria.
Roles of Victorian Police
- Talk to victims
- Questions suspects
- Examine crime scene(s)
- Gather evidence
- Conduct searches
- Arrest accused
- Charge people
Statutes which allow police powers
- Section 458 of the Crimes Act 1958 (Vic) allows police to arrest with a warrant in some circumstances
- the Criminal Procedure Act 2009 (Vic) enables police to take fingerprints of suspects in certain circumstances
Australian Federal Police
Police force that investigates federal offences (e.g. terrorist-related offences, war crimes, drug offences)
Delegated bodies
An authority or agency given power by parliament to make and/or enforce laws
WorkSafe Victoria
Established under ‘Occupational health and Safety Act 2004’
Monitors and enforces compliance with Work Safety Acts
Local councils
Given authority under ‘Local Government Act (1989’
Has the power to pass and enforce ‘by-laws’
Individual Rights
Australians are entitled to a number of rights and freedoms
What are individual rights protected by?
The Equal Opportunity Act 2010 (Vic)
The Human Rights Charter
Institutional Powers
Investigative and prosecution agencies, such as the Victorian police or the Office of Public Prosecutions, have powers that enable them to gather fingerprints, charge an accused, initiate criminal proceedings, etc.
What are the powers that institutions have?
Arrest, Questioning, Court proceedings, Imprisonment of an accused
Institution powers in relation to arrest
The police have the power to arrest an accused person with or without a warrant if they believe it is necessary…
- to ensure that the offender appears court
- preserve public order
- prevent the repetition of the offence
- ensure the safety of the public or offender
Individual rights in relation to arrest
- Can refuse to attend a police station unless under arrest
- An arrested person must be informed of the reason for the arrest at the time of the arrest
- An arrested person must be promptly brought before court and be brought to trial without unreasonable delay
- Has the right to silence (Other than providing name and address)
- If arrested, a person must be released in a reasonable time
Institution powers in relation to questioning
An investigating official has the power to question a suspect within a reasonable time
Individual rights in relation to questioning
- Must first be informed that they do not have to do or say anything, but that anything they do or say may be used as evidence
- Right to an interpreter
- Can stay silent and does not need to respond to any questions (other than to give their name and address)
- Communications with the person’s legal practitioner must not be overheard
- If under 18 years, a parent, guardian or independent person must be present during thequestioning
- Must be informed that they can communicate with or attempt to communicate with a friend, relative or legal practitioner
-The questioning can only occur within a reasonable time
Institution powers in relation to court proceedings
Prosecution has the power to prepare the case, speak with witnesses, obtain evidence and negotiate with the accused about an early guilty plea
Individual rights in relation to court proceedings
- have the charge decided by a competent, independent and impartial court after afair and public hearing
- be presumed innocent until proven guilty
- be informed promptly and in detail about the nature and reason for the charge
- have adequate time and facilities to prepare a defence
- be tried without unreasonable delay
- obtain legal aid if the interests of justice require it
- have the assistance of an interpreter if needed
- have the opportunity to challenge and rebut the evidence put against them.
Institutional powers in relation to imprisonment of the offender
Judges and Magistrates may sentence offenders to a term of imprisonment.
Corrections Act 1986 (Vic) gives prison officers powers to examine any person, seize unauthorised goods, and arrange for medical tests for alcohol or drugs.
Individual rights in relation to imprisonment of the offender
- The right to be in open air for at least one hour each day
- The right to be provided with adequate food and, where necessary, special dietary food
- The right to be provided with suitable clothing
- The right to have access to reasonable medical and dental care
- The right to appropriate special care and treatment if intellectually disabled or mentally ill
- The right to practice religion
- The right to receive at least one half-hour visit a week
The two types of jurisdiction
Original and Appellate
Jurisdiction of the Magistrates’ Court
- Summary offences
- Indictable offences heard summarily
- Committal proceedings
- Bail and warrant applications
Jurisdiction of the County Court
Original jurisdiction
- Indictable offences (excluding treason, murder, attempted murder, conspiracy)
Appellate jurisdiction
- Magistrate’s Court on conviction or sentence
Jurisdiction of the Supreme Court (Trial Division)
Original jurisdiction
- Serious Indictable offences
Appellate Jurisdiction
- Magistrate’s Court on point of law
Jurisdiction of the Supreme Court (Court of Appeal)
Appellate jurisdiction
- All appeals from County Court or Supreme Court (Trial Division)
- From the Magistrates’ Court
Difficulties faced by First Nations people in the criminal justice system
- Over-representation in the criminal justice system
- Cultural differences
- Language differences
- Distrust in the criminal justice system
- Lack of culturally safe legal services
- Lack if respect for the right of self-determination
- Lack of culturally appropriate sentencing options
- Hardships experienced in prison and detention
How does the criminal justice system address difficulties faced by First Nations people?
- Dedicated funding for Aboriginal legal aid
- Specialised courts and programs (e.g. the Koori Court)
- Cultural competence training
- Developing self-determination initiative
Difficulties faced by young people in the criminal justice system
- Lack of understanding of the justice system
- Negative effects of custody
- Psychological barriers
- Lack of specialist legal services and courts
- Lack of formal education
How does the criminal justice system address difficulties faced by young people?
- YouthLaw (a dedicated community legal centre for young people)
- Youth diversion programs
- Intermediaries to assist vulnerable witnesses to communicate with the court
- National conversation about increasing the age of criminal responsibility
Difficulties faced by culturally and linguistically diverse people in the criminal justice system
- Over-representation in the criminal justice system
- Limited knowledge and awareness of their rights, services and processes
- Language differences
- Distrust in the criminal system
- Disproportionately affected by family violence
- Religious or cultural barriers
- Lack of financial resources
- Racism and discrimination
How does the criminal justice system address difficulties faced by culturally and linguistically diverse people?
- Free interpreters
- Availability of information in different languages
- Specialist CLCs (community legal centres) for asylum seekers and refugees
- Advice and resources provided to court personnel to ensure procedural fairness and equality of treatment for all court users.
Difficulties faced by people with disability in the criminal justice system
- Over-representation in the criminal justice system
- More likely to experience violence and abuse
- Physical barriers
- Lack of understanding by others about disability
- Lack of support services
- Lack of appropriate accommodation for prisoners with mental health condition
- Lack of rehabilitation programs
- Community attitudes and discrimination
How does the criminal justice system address difficulties faced by people with disabilty?
- Specialist courts and programs that address
the needs of accused people living with a
disability - Adjustments made to courtroom procedures to accommodate people living with a disability.
- Specialist advice/support is provided by CLCs (community legal centres) and VLA (Victoria Legal Aid).
The purposes of sanctions
Punishment, Rehabilitation, Deterrence, Protection, Denunciation
Fines
A fine is a monetary penalty that is paid by the offender to the state of Victoria (not to the victim)
Community Correction Order (CCO)
A community correction order (CCO) is a a flexible, non-custodial sanction the offender serves in the community, with conditions attached to the order.
When can a CCO be imposed?
A CCO can be imposed if:
- the offence is punishable by more than five penaltyunits
- if the offender consents to the making of aCCO.
A CCO cannot be imposed for ‘category 1’ offences.
What are the conditions of a CCO
Mandatory and optional conditions
Imprisonment
Imprisonment is the most serious sanction that can be imposed. It involves the removal of the offender from society and into a secure facility known as a jail or prison.
What are the conditions of imprisonment?
Parole, concurrent and cumulative sentence
Sentencing factors that may reduce a sentence
Nature and gravity of the offence,
Early guilty plea,
Lack of prior offending,
Remorse,
Cooperation with the police
Sentencing factors that may increase a sentence
Nature and gravity of the offence,
Aggravating factors,
Prior offending,
Impact of offence on any victim,
Injury, loss or damage as a result of the offence
Drug Court
The Drug Court directly addresses the issue of drug and alcohol dependency when sentencing offenders. The court gives a drug and alcohol treatment order to rehabilitate the offender.
Eligibility for Drug Court
- Must live with area serviced by the Drug
- Must plead guilty to theoffence
- The offence must be within the jurisdiction of the relevant courts and punishable by imprisonment
- The offence must not be a sexual or violent offence
- The offender is dependent on drugs or alcohol which related to the offence
- The offender would’ve otherwise been sentenced to a term of imprisonment of no more than two years or four years
Koori Court
The Koori Court is a sentencing court available to First Nations offenders which aims to provide an informal atmosphere for sentencing. The magistrate or judge may take advice from an Elder on cultural issues and appropriate sentencing.
Eligibility for Koori Court
- The accused must be a First Nations person.
- The offence must be within the jurisdiction of the relevant court.
- The offence must not be a sexual offence.
- The accused intends to plead guilty or has pleaded guilty
- The accused must consent to the case being dealt with by the Koori Court.
Diversion programs
A diversion program is available in the Magistrates’ Court and Children’s Court for summary offences and enables a criminal matter to be dealt with out of court by placing the offender on a program rather than entering a plea or being found guilty. The program is intended for first-time offenders.
Eligibility for diversion programs
- The accused must acknowledge (to the Magistrates’ Court) responsibility for theoffence.
- The Magistrates’ Court must consider it appropriate that the accused participates in theprogram.
- Both the prosecution and the accused must consent to the matter beingdiverted.
- The offence must not be one that is punishable by a minimum or fixed sentence or penalty.
Sentencing in the Northern Territory
- The Northern Territory has fewer courts than Victoria
- The Northern Territory has fewer prisons than Victoria
- The Northern Territory has sentences such as home detention orders and suspended sentences that are not available in Victoria
- Indigenous people make up about 85 per cent of NT’s prison population
