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Legal > Unit 2 AOS 1 > Flashcards

Unit 2 AOS 1 Flashcards

1
Q

Fairness

A

Fair legal processes and fair hearing or trial – meaning impartial/unbiased treatment

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2
Q

Equality

A

Everyone is equal before the law, regardless of their personal attributes or characteristics

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3
Q

Access

A

Everyone should be able to understand their legal rights, and given the chance to use the legal system (incl. the courts, other bodies, and services that provide legal information

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4
Q

The police

A

Their role is to serve the community and the law, and to enforce criminal law

In Victoria – two police bodies:
-Victoria Police
-Australian Federal Police (AFP)

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5
Q

Victoria Police

A

Role is to serve the Victorian community and to uphold the law to promote a safe, secure, and orderly society
They enforce most summary offences and all indictable offences by:
Talking to victims and witnesses
Questioning possible suspects
Examining the crime scene/s
Gathering physical and/or forensic evidence
Conducting searches of people or property
Arresting accused people
Charging people with offences

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6
Q

Australian Federal Police

A

Established by the Australian Federal Police Act 1979 (Cth)
The AFP investigate crimes that have a federal aspect
E.g. terrorist-related offences

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7
Q

Delegated bodies

A

An agency that is given power by
Parliament to make and enforce laws.

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8
Q

Examples of Victorian delegated bodies

A

VicRoads
Local Councils

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9
Q

Commonwealth delegated bodies example

A

Australian Taxation office
Australian Securities and Investments Commission

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10
Q

Why do the Victorian Police and the OPP have institutional powers?

A

To enforce the law

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11
Q

why is it important to balance institutional powers and individual rights?

A

If there is too much institutional power, the individual may be treated unfairly
If there is not enough institutional power, it could be too difficult to enforce the law

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12
Q

What are the stages of a criminal case?

A

arrest, questioning, bail, court proceedings, imprisonment of the offender

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13
Q

Arrest- powers

A

Police have the power to arrest (with or without a warrant), with reasonable force, once a crime has been committed.

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14
Q

Arrest- rights

A

an indivual can refuse to go to a police station unless arrested
A person does not need to say anything when arrested except to give their name and address

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15
Q

Questioning- powers

A

If a person has been arrested and they’re in custody, an investigating official has the power to question that person within a reasonable time

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16
Q

Questioning- rights

A

be first informed that they do not have to do or say anything.

Communication with a legal practioner must not be able to be overheard

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17
Q

Bail- rights

A

the release of an accused person from custody on the condition that they’ll attend a court hearing to answer the charges

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18
Q

Bail- powers

A

The prosecution has powers to oppose bail, or apply to have bail cancelled

The person deciding bail can refuse, or impose conditions

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19
Q

court proceeding- powers

A

The power to enforce the law also includes the power to commence criminal action to obtain a guilty verdict (or plea) and to punish the offender

Prepare the case
Speak to witnesses
Obtain evidence
Negotiate with the accused about an early guilty plea

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20
Q

court proceedings- rights

A

Have the proceeding decided by a competent and impartial court.
Be presumed innocent until proven guilty

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21
Q

Imprisonment- powers

A

The court has the power to imprison if:
The maximum penalty for a crime is imprisonment; and
The court considers it to be an appropriate sentence

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22
Q

imprisonment- rights

A

Open air for at least 1hr
Access reasonable medical care
adequate food

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23
Q

Reasons for court hierachy

A

Specialisation
Appeals
Doctrine of precedent
Administrative convenience

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24
Q

Specialisation

A

courts become experts in dealing with particular cases

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25
Q

Appeals

A

parties can go to a higher court if they believe an error has been made

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26
Q

Doctrine of precedent

A

allows this legal principle to operate

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27
Q

Administrative convenience

A

more Magistrates’ Courts to hear summary offences (which there is more of), County and Supreme Courts to hear complex cases

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28
Q

The role of Victorian Courts

A

Two main roles:
Determine a criminal case (i.e. decide whether the accused is guilty)
Impose a sanction (if the accused has pleaded or is found guilty)

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29
Q

Determine a criminal case

A

If an accused pleads not guilty, then the courts will need to determine their guilt

For indictable offences:
First, the case goes to the Magistrates’ Court for a committal proceeding. The final stage is a committal hearing, where the magistrate will decide whether there is sufficient evidence to support a conviction
Then, the case will go to either the County Court or the Supreme Court

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30
Q

Impose a sanction

A

If the accused pleads or is found guilty, then a date is set for a plea hearing
Here, the facts of the case, relevant factors to be considered when sentencing and the type of sentence that the offender should receive is submitted by both parties
Then a sentencing hearing takes place, where the magistrate or judge will sanction the offender
In the higher courts, the judge will give a written judgement about the sanction they have imposed (this will be made public)

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31
Q

What is jurisdiction

A

Jurisdiction – the lawful authority (i.e. power) to decide legal cases

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32
Q

Original jurisdiction

A

the power of a court to hear a case for the FIRST TIME

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33
Q

Appellate jurisdiction

A

the power of a court to hear a case on APPEAL

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34
Q

Magistrates Court original jurisdiction

A

-Hears summary offences and indictable offences heard and determined summarily
-If the accused pleads not guilty, a HEARING is held to determine guilt
-Also hears bail applications, warrants and carries out committal proceedings

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35
Q

Magistrates court appellate jurisdiction

A

Does not hear appeals – they are the LOWEST court in the hierarchy

36
Q

County court original jurisdiction

A

Hears all indictable offences except those specified in section 36A County Court Act 1958 (Vic)
E.g. cannot hear murder cases
If the accused pleads not guilty, a TRIAL is held to determine guilt

37
Q

County court appellate jurisdiction

A

Hears appeals from convictions or sentences handed down in the Magistrates’ Court

38
Q

Supreme Court trial division original jurisdiction

A

Hears all indictable offences – generally the most serious that cannot be heard in the County Court
If the accused pleads not guilty, a TRIAL is held to determine guilt

38
Q

Supreme Court trial division appellate jurisdiction

A

Hears criminal appeals on questions of law from cases heard in the Magistrates’ Court

39
Q

Supreme Court of Appeal original jurisdiction

A

has none

40
Q

Supreme Court of Appeal appellate jurisdiction

A

Hears appeals from the County Court and the Supreme Court (Trial Division)

41
Q

What is a jury?

A

A jury is a panel of everyday citizens that are summonsed by a court to determine the verdict of a case in which one of their peers from society is on trial.

42
Q

When are criminal juries used?

A

Used in the original jurisdiction of the County Court and Supreme Court
Used to determine guilt or innocence for an accused charged with an indictable offence
Not used:
In the Magistrates’ Court
During appeals
When the accused has pleaded guilty

43
Q

What is the role of criminal juries?

A

The jury in a criminal trial must:
Listen to all the evidence
Concentrate during the trial
Piece the evidence together and decide whether the accused is guilty or not

44
Q

List 3 strengths of criminal juries

A
  • Juries are independent and impartial
  • Allows the community to be involved in the legal system which increases the confidence in the system
    -ensures that the verdict reflects the values of the community
    -ensures fairness by requiring the jury to deliberate based on the evidence and facts and not their own independent research
    -spreads the responsibility of making a decision- fair
45
Q

List 3 weaknesses of criminal juries

A

-they do not give reasons for their decision
-deliberations occur behind closed doors questions whether the decsion has been made based on the facts and the evidence
-The task is difficult where there is complicated evodemce, it has been questioned whether ordinary members of the public can understand it and make the right decision
- may be influenced by skilled lawyers or by the emotional elements of the trail
-may have biases that play a role in their deliberation
-results in delays because legal terms have to be explained to the jury

46
Q

What are the 5 purpose of sanctions

A

punishment, deterrence, denunciation, protection, rehabilitation

47
Q

What is punishment?

A

Designed to penalise the offender and show society and the victim that criminal behaviour will not be tolerated

48
Q

What is deterrence?

A

To discourage the offender and members of the community from committing the same or similar offences in the future
General deterrence – to discourage members of the community
Specific deterrence – to discourage the offender

49
Q

what is denunciation?

A

To show disapproval of the offender’s actions - This behaviour will not be tolerated by the courts

50
Q

What is protection?

A

To ensure the safety of the community by imposing a sanction that prevents the offender from harming again
Best achieved by imprisonment – but this is a last resort

51
Q

What is rehabilitation?

A

To reform an offender in order to prevent them from committing offences in the future
Looks to help offenders change their ways – otherwise they will become repeat offenders, leading to an increase in crime rates and prison costs

52
Q

Different forms of rehabilitation

A

education, training, assistance and support

53
Q

Types of sanctions

A

fines, CCOs, imprisonment

54
Q

What are fines?

A

a fine is a financial penalty that is paid by the offender to the State of Victoria. These fines are expressed in penalty units as it makes it easier to keep the law up to date with changes.

55
Q

What does the court have to consider when sanctioning an offender a fine?

A
  • The financial circumstances of the offender
    -Any loss, destruction, or damage to property
    -The value of benefit received by the offender from the offence
    -Any forfeiture, compensation or restitution order already imposed – i.e. has the offender already paid compensation or given up property?
56
Q

What purposes of sanctions do fines achieve

A

: Punishment, deterrence (general & specific)

57
Q

What is a CCO?

A

is a flexible sentencing order where the offender serves their sentence in the community

58
Q

When can CCOs be imposed?

A

The offence is punishable by more than five penalty units; and
The offender consents to the making of a CCO

59
Q

what purpose of a sanction do CCO’s achieve?

A

punishments, deterrence (specific and general), rehabilitation, protection

60
Q

Imprisonment

A

removing the offender from society for a period of time and placing them in prison

61
Q

How can a term of imprisonment be served

A

Concurrently – served at the same time
Cumulatively – one after the other

62
Q

what purpose of a sanction does imprisonment achieve?

A

protection, punishment, deterrent, denunciation, rehabilitation

63
Q

Factors considered by judges when deciding sentencing

A

Current sentencing practices
Maximum penalty for offence
Personal circumstances
Aggravating factors – can increase sanction
Mitigating – can decrease sanction

64
Q

What are factors that may reduce a sentence

A

nature and gravity of offence- if on the low end of the scale
Early guilty plea- saves time and resources
Lack of prior offending
Remorse- if they show significant remorse

65
Q

factors that may increase a sentence

A

nature and gravity of the offence- if its on the high end of the scale
previous offending
Impact of the offence on any victim
injury loss or damage as a result of the offence

66
Q

How is Norway’s sentencing practises different to Victoria

A

Norway focus on rehabilitation
- Highest sentencing is 21 years
suspended sentencing
Vic
Koori courts, drug courts
abolished home detentions and introduced CCOs

67
Q

What is the drug court?

A
  • deals with offenders who commit crimes while under the influence of drugs or to support a drug habit

-Aims to address drug use and offending by dealing with drug and alcohol dependency

-Imposes DTOs

68
Q

What is the Koori Court?

A

is available to an Indigenous accused
Allows for informality and representation of the Indigenous community in the sentencing process
Aims to explore alternatives to imprisonment
Certain eligibility criteria must be met

69
Q

What is a diversion program?

A

Available for summary offences to ‘divert’ offenders away from the court system
Offenders are placed on a program or plan, with conditions attached
Intended for first-time offenders – aims to reduce reoffending and assist in rehabilitation
Must ask for a diversion program.

70
Q

Strengths of the drug court

A

addresses underlying causes of crime-drug and alcohol dependency
Avoids effects of imprisonment
provides ongoing support and supervision
provides positive reinforcement through the rewards program
better alternative to prison
more cost-effective
breaks the cycle of offending

71
Q

Weaknesses of the drug court

A

Not every offender is eligibke to be sentenced
Not always successful in reforming offenders
Drug Court is limited in its capacity to accept offenders
Expensive to establish
Some have criticised the rewards program

72
Q

Strengths of the Koori Court

A

Increases indigenous ownership and particpation
provides an informal atmonsphere for sentencing
reduces recidivism
experience of the accused is vastly improved with the experience being more engaging and inclusive and less intimidating

73
Q

Weaknesses of the Koori Court

A

Not available to all offenders
not available in all locations
limited to senencing only and does not extend to trails
over-representation if Indigenous people in the criminal justice system has not generally improved over the years

74
Q

Strengths of a diversion program

A

Allows avoidance of criminal records
saves court resources
provides offenders with access to assistance such as rehabilitation and counselling
can involve victims
reduces recidivism

75
Q

weaknesses of a diversion programs

A

limited to certain offenders and offences
effectiveness depends on the offender
prosecuting can prohibit the offender from participating
may be seen as soft option of punishing offenders

76
Q

Central facts of the case DPP v AK

A

Chol and her friend were hosting a party in their Air BnB until uninvited guests joined them the next day refusing to leave, as well as rifling through the girl’s drawers. When they finally left Chol noticed that her phone was missing which is why she followed them into the hallway and pushed one of them named PM. This led to a verbal altercation which resulted in them starting to punch and kick Chol whilst being held down by MM. Following this they made their way towards the lifts where AK drew a knife from his clothing and stabbed her violently in the chest whilst she was being held back. In addition to this AK kicked her one more time before him and his friends left the premises. Unfortunately, Chol died before the ambulance were able to reach her but luckily it was all caught on CCTV footage and was able to be later used in the trial. AK was later arrested by the police in 2018 July 23rd, three days after the death of Chol.

77
Q

courts involved in the case DPP v AK

A

Magistrates’
- AK plead not guilty to a serious indictable offence meaning a committal proceeding had to be held.
- At this proceeding the Magistrate determined that there was enough evidence to proceed to trial.
Supreme Court
- AKs trial was head and determined in the Supreme Court (only court that can hear murder charges)
- Even though he was younger than 18 at the time of the offence, Childrens Court does not have the jurisdiction to hear murder cases.

78
Q

appropriateness of the sanction DPP v AK

A

Positives of imprisonment
- Serves as an effective method of punishment.
- Most serious punishment with deprivation of liberty
- Widely reported and can act as an appropriate general deterrent.
Negatives of imprisonment
- High recidivism rates may suggest imprisonment is ineffective.
- Rehabilitation depends on the offender, the programs and the environment.
- Offenders with mental illnesses have a higher chance of reoffending as being away from friends and family whilst in prison can make their condition worse causing reoffending.

79
Q

Aggravating factors of the case DPP v AK

A

Seriousness of the offence
- Because of the violent nature of the crime as well as Chol being defenceless making AK’s actions unprovoked, needless, cowardly, and callous.
- After the crime he committed he fled the scene and disposed the knife demonstrating no remorse and no concern for Chol’s wellbeing
Prior convictions
- AK had prior convictions of aggravating burglary, assault, and offences of dishonesty,
- He previously spent time in youth justice centres for prior offences.
Impact of the crime
- The impact of the crime on Chol’s friends and family which was discovered in the victim’s impact statements.
- These showed that Chol’s friends and family continue to suffer.

80
Q

Mitigating factors of the case DPP v AK

A

Plead guilty.
- AK pleading guilty manslaughter which reduced the trauma of Chol’s family and friends.
- Because of this the disputes at trials were narrowed so they only had to worry about whether AK intended to cause Chol serious injury.
Young age
- At the time of the offence, he was only 17 years old.
- When sentenced he was 18 years and 5 months.
- However, because of the seriousness of the offending Judge Kaye gave less weight to AKs youth as a mitigating factor than normal.
Degree of remorse
- Justice Kaye noted that AK had genuine remorse.
- However limited and ill-informed so it was only taken into account to a limited extent.

81
Q

Possible avenues for appeal DPP v AK

A

appeal against the conviction
- AK can claim that jury’s verdict was wrong.
Appeal against the sentence
- AK could appeal stating that his sentence was too much and should have been lower because of the factors of the case.
appeal against both
- AK could appeal stating that the jury verdict was wrong and that his sentence was too harsh.

82
Q

The extent to which fairness is achieved in DPP v AK

A

AK would have been able to exercise his rights before and during the trial.
- The right to plead guilty or not guilty and was entitled to change his plea.
AK was legally represented.
- Having legal representation would have enabled AK to understand the courts processes and procedures as well as the implications of pleading guilty to manslaughter.
The prosecution had the burden of proof
The standard of proof in this case is beyond reasonable doubt.
AK was able to introduce evidence by a clinical psychologist.
The trial would have been conducted through a set of processes to ensure a fair trial.

83
Q

The extent to which equality is achieved in DPP v AK

A

Both parties have the right to engage legal representation which upholds equality
Justice Kaye acted as an independent and impartial adjudicator.
AK had the benefit of a trial by a jury of people selected of random who reached a verdict based on evidence from both parties.
Both parties could call witness om the case
There is no evidence to suggest that AK suffered any form of discrimination or was not treated equally before the law.
A pseudonym was used for AK as he was a minor at the time of the offending.

84
Q

The extent to which access is achieved in DPP v AK

A

The trial and the sentencing hearing were conducted as open hearings and the sentencing remarks are available to the public.
During the trial both parties had an equal opportunity to present evidence
Ak had access to all of the evidence that was used against him at the trial.
Both parties had the right to appeal
Before AK was sentenced victim impact statements were made to the Supreme Court.

Legal (10 decks)

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