Unit 3 Flashcards
what is a crime
an act or omission that:
-breaks an existing law
-is harmful to an individual or society as a whole
-is punishable by law
crimes act 1958
the rule of law
the principle that everyone in society is bound in law and must obey the law, and that laws must be clera so that people want to obey them
the rule of law upheld by
-clear and accessible laws
-courts and judges must be independent
-the law being equally applied to everybody
-presumption of innocence
purposes of the criminal justice system
-deciding whether an accused is guilty of an offence
-imposing a sanction
jago statement
the right to a fair trial is not limited to just the trial itself
dietrich statement
a lack of fair legal representation when defending an indictable offence may result in an unfair trial
presumption of innocence
a lack of fair legal representation when defending an indictable offence may result in an unfair trial
presumption of innocence maintained by
-hight sop
-imposing bop on the prosecution
-bail
Statutory Rights for an Accused
-the right to be tried without unreasonable delay (section 21(5) hrc)
-the right to a fair hearing (24 (1) hrc)
-the right to a trial by jury (80 of aus constitution and statute law)
bail
the release of an accused person from custody on the condition that they will attend a court hearing to answer the charges
Right to give evidence as a vulnerable witness
generally children, people with cognitive impairements, and victims of sexual abuse and domestic violence
vulnerable witness protections
-witnesses may give evidence from a place other than the courtroom
-screens may be used to remove the accused from the witness’ direct line of sight
-a support person may be used
-legal practitioners may be required to dress more casually or remain seated during questioning
vla
the vla is a government agency that provides free legal advice to the community and low or no-cost legal representation to those who cannot afford it
most critical role: to provide legal aid to accused people
vla methods of assistance
-free legal aid (available to everybody)
-free legal advice (focused on people who need it the most)
-free duty lawyer services (fact sheets = everybody, advice = people who pass the income test, representation = income test, vla priority and/or serious charge)
-grants (pass the means tes)
income test (vla)
-pass if they can produce a current Centrelink benefit card or prisoner concession card
-for people who need legal advice from a duty lawyer on a particular day
means test (vla)
-sets thresholds for an applicant’s income and assets as well as their expenses and legal costs
-for people seeking grants of legal assistance during the trial process
merits test (vla)
a threshold test which must be satisfied in most Commonwealth law matters
vla criticisms
-not enough funding to meet demands
-a large part of the community is ineligible
clcs
clcs are independent organisations that provide free legal services, including advice, information and representation to people who cannot access other legal services
generalist clcs
provide broad legal services to people in a particular geographical area
specialist clcs
focus on a particular group of people or area of law
clcs types of assistance
-basic legal information
-initial legal advice
-duty lawyer assistance
-legal casework
clc eligibility criteria (general)
-type of legal matter
-whether other assistance is available
-whether the person has a good chance of success
-whether the accused can manage the case without assistance
committal proceedings purpose
-criminal procedure act 2009
-determine whether evidence is of sufficient weight to support a conviction by a jury at a trial
-determine how the accused plans on pleading
committal proceedings strengths
-saves time and money
-can assist the accused in deciding on a plea
-supports presumption of innocence
-prosecution can drop charges
committal proceedings weaknesses
-complicated process, especially without representation
-can add to the delay
-contribute stress and trauma for the accused/victims
vlrc recommended reform for committal proceedings
-case management systems should be used between courts
-test for committal should be abolished
plea negotiations
pre-trial discussions between the prosecution and the accused, aimed at resolving the case by agreeing on an outcome
plea negotiations outcomes
-the accused pleads guilty to fewer charges
-the accused pleads guilty to a charge with agreements made about the facts of the case
-the accused pleads guilty to a lesser charge
plea negotiations strengths
-save the cost of a trial or hearing
-help with the prompt determination of criminal cases
-accused may receive a reduced sentence
plea negotiations weaknesses
-save the cost of a trial or hearing
-help with the prompt determination of criminal cases
-accused may receive a reduced sentence
sentence indications
statements made by a judge to an accused about the sentence they could face if they plead guilty to an offence
new reforms to sentence indications
-must take place before a trial commences
-no prosecutor consent needed
-can be given multiple times
role of judge
-managing the trial
-deciding on the admissibility of evidence
-attending to jury matters
-giving directions to the jury
-handing down a sentence
role of jury
-take part in deliberations
-consider the elements of the crime
-deliver a verdict
sanctions purpose
-rehabilitation
-punishment
-deterrence
-denunciation
-protection
koori court expansion (2020) (implemented reform to criminal law)
f
-emphasises koori court importance
-sentence is still handed down by the judge
-not well enough established
a
-enables greater access to the koori court system
-does not address other issues such as access to information
e
-addresses the disadvantage faced by Indigenous australians
-sentencing only court, not available to everybody
victim support dog program (2019)
f
-intended to help see witnesses and victims deliver their evidence in a calm way
-jurors do not see the dog and so do not get influenced by their presence
a
-enable greater access to vulnerable witnesses
-witnesses may be more prepared to give evidence
e
-measures taken to make sure there is no inequality suffered
-seeks to provide assistance to vulnerable witnesses who are more at risk of suffering secondary trauma
Judge alone trials (recommended reform)
f
-fairness issues faced by judges in higher profile cases
-delays as a result of COVID-19 subverted
a
-allows the judge (most exprienced professional) to be the decider of facts
-may deny a person of recieving a trial from a member of their peers
e
-a high profile person may be at a disadvantage because of media coverage, jury may be bias
-also may be seen as giving advantage to a high profile person
increased funding to legal services (recommended reform)
f
-would increase access to legal representation
-prevents the need for self-representation
a
-helps avert costs - largest barrier to legal service
-provides the assistance of legal services
types of civil law
-family law
-defamation
-trespass to land
-wills and inheritance
-breach of contract’
-nuisance
-negligence
when can representative proceedings be commenced
-if seven people or more have claims against the same person
-those claims relate to the same, similar or related circumstances
-the same issue need to be decided
types of representative proceedings
-class actions
–product liability class actions
–natural disaster class actions
benefits of representative proceedings
-the group members can share the cost
-it is a more efficient way of dealing with a number of claims
-people can pursue civil actions that they might not be able to afford
options for negotiation
-arranging an independent third party (mediation/conciliation)
-arranging negotiation or other dispute resolution services through alternate bodies
benefits of negotiation
-the cost, time and stress involved in commencing a formal civil action may be avoided
-the parties have control over the outcome
-the parties may be more prepared to accept an outcome that they have helped come to
disbursements
-these are ‘out of pocket expenses’
–court fees
–mediation fees
–expert witness
limitation of actions
the restriction placed on the time within which a civil action can be commenced (Limitation of actions act 1958 (vic))
limitation of actions purpose
-the defendant does not have to face action after a significant amount of time
-evidence is not lost and people can still remember what happened
-disputes can be resolved as quickly as possible
–promotes social cohesion
cav
CAV is a complaints body which offers free dispute resolution services to people who make a complaint about another policy
cav purposes
-laws about the sale and purchase of goods and services
-provides consumers and traders, and landlords and tenants, with a dispute resolution process
cav dispute resolution methods
-conciliation, primarily over the phone
–involves the assistance of a third, neutral party, the conciliator
—does not make suggestions on behalf of the parties
—usually has specialist knowledge
–if the party comes to an agreement, they can sign a terms of settlement which is enforceable by the courts
cav jurisdiction
-the sale of goods and services
-residential tenancies
-retirement villages
cav strengths
-CAV’s conciliaition service is free
-the process is informal
-CAV aims to resolve matters in a timely manner
cav weaknesses
-not all cases are accepted
-CAV has no power to compel parties to undergo conciliation
-informal nature means the parties may not take the matter seriously
vcat
a dispute resolution tribunal
purpose: to provide Victorians with a low-cost, accessible, efficient and independent tribunal
vcat divisions
administrative, civil, human rights, planning and environment, residential tenancies
vcat dispute resolution methods
-mediation
-compulsory conferences (use conciliation)
-a final hearing before a member
mediation
-cooperative method of resolving a dispute
-mediator does not interfere or offer legal advice, and also does not need to be an expert
-terms of settlement may be drawn up to make the decision legally binding
-claims between $100 and $10 000 may be eligible for fast-track
vcat jurisdiction
-purchases of sales and goods
-disputes between tenants and landlords
-discrimination/sexual harrassement
-domestic building works
-lawyers, lawyers’ contracts, legal services
vcat cannot hear
-representative proceedings
-disputes between employers/employees
-disputes involving federal or state law
vcat strengths
-normally cheaper than courts
-flexible (fairness + equality)
-informal
vcat weaknesses
-cannot create precedent
-there is a limited right to appeal
-cannot solve some large and complex cases
technological improvements in the legal system (2019)
f
-used to ensure all parties can equally access and view information
-streamlines the hearing process, reducing delays
a
-enable greater access for people in rural or remote areas
-not widespread and more needs to be done
e
-equality by giving more people access to courts and tribunals
-may not help people who don’t have access to technology
expansion of VCAT’s fast track mediation (2019)
f
-mediation can avoid procedural fairness issues in a VCAT hearing
-not a complete solution
a
-greater access to people with claims up to $10 000
-highly successful ADR is provided to more in need
e
-impartial and unbiased mediator
-not a complete solution
increased use of case management (recommended reforms)
f
-involves greater use of the judge when managing a dispute
a
-can avoid the need for trial
-can depend on which judge a party recieves
e
-tries to ensure that people are subjected to the same processes
-some parties may be ordered to do things others are not
National Justice interpreter scheme
f
-provides a person with a non-English speaking background with a greater understanding of the court process
a
-depends on the availability of the interpreters
-‘’
e
-assists vulnerable parties to get an equal footing
discovery of documents
-enables parties to get copies of documents that are relevant to the dispute
-usually via electronic exchange
-usually, parties are required to submit documents that are adverse to their own trial
discovery of douments purposes
-disclose of all relevant documents
-reduce the element of surprise at trial
-determine the strength of the other side’s case
exchange of evidence
lay
-evidence about what happened
-in writing or in person
expert
-independent, opinion evidence in an area of expertise
-written report
exchange of evidence purposes
-reduce the element of surprise at trial
-determine the strength of the other side’s case
-offer a chance to rebut
