Unit 3 Flashcards
Define Fairness
All people can participate in the justice system and its processes should be impartial & open
Elements to Fairness?
Participation
-opportunity to prepare case through knowing facts (what charged with)
-opportunity to examine witnesses
-use of a lawyer
-trial without unreasonable delay
-Allowing victims to use alternate arrangements when giving evidence(vulnerable witness e.g video link)
-Victim Impact Statements (can be read out during sentencing)
Impartial Process
-Courts and personnel (judges, magistrates,jury) are independent and impartial
-No party is shown bias or discrimination
-Case is decided on facts and law rather than opinion and prejudice
Open Process
-‘Open Courts Act 2013’ (vic) recognises court should be open
-Community should see justice being done to promote confidence in legal institutions
-Prevent abuse of power by judges which in turn promotes integrity and rule of law
-certain purposes of criminal law e.g protecting society through deterrence, would be undermined if held secret
Define Equality
All people engaging the the justice system should be treated in the same way. if the same treatment creates disparity or disadvantage, adequate measures should be implemented, to allow all to engage with the justice system without disparity or disadvantage
Define Access
All people should be able to engage with the justice system and its processes on an informed basis.
Elements of Access?
Engagement
-physical access (rural may x have access)
-financial access (ppl should x be prevented to defend their case bc financial)
-technological access (if online methods are used to provide services or conduct court hearings, ppl should be able to use them)
Informed basis
-Education (educated r more informed of rights, info should be produced by courts in plain english to supp those w low literacy)
-Access to legal support services (free access to legal supp -> more informed about their rights)
-Legal Rep (best way for person to be informed abt rights & legal processes)
Which Institutions enforce criminal Law?
Victorian Police, Australian Federal Police, and Delegated Bodies
Role & whatever Victorian Police
-Governed by’ Victoria Police Act 2013’ (vic)
-main institution enforcing criminal law relating to indictable offences and most summary offences in victoria
-Role= serve the Victorian community and uphold the law so as to promote a safe, secure and orderly society
Elements of Victorian Police that enforces criminal Law
Crime Prevention
-Patrol areas and maintain a presence to protect local citizens
-engage in community education to deter future criminal behaviour
Crime Investigation
-Talk to witnesses and victims about incidents
-Question Possible suspects
-Examine crime scenes and collect evidence for analysis (drugs, paint, fibres, hair, blood)
-conduct searches of people and/or property
Crime Prosecution
-arrest accused persons
-Charge people with offences that most fit the crime
-Prosecuting summary offences in the magistrates Court
-Sending info to Office of Public Prosections (OPP) for indictable offences
Australian Federal Police
Investigate and enforce criminal laws which have a federal aspect, focuses on crimes like:
-transnational
-serious complex and organised crime
-cybercrime and cyber safety
-Child Protection
-Countering Terrorism and violent extremism
Works w Victorian Police and other investigative agencies to identify and arrest possible offenders
What are Delegated Bodies?
specific agencies that due to expertise in particular areas, been granted authority from parliament to both create and enforce certain laws, authority is assigned by act of parliament
Role of Delegated Bodies
to investigate, prosecute and enforce law in their specific area, this results in burden of work on police decrease, important bc police understaffed 2023
Powers and Rights
Law enforcement institutions use investigative and prosecution powers when undertaking their duties, however, institutional powers must be balanced against the rights of individuals
List of sources of institutional powers:
-Police powers of arrest and questioning are in ‘Crimes Act 1958’ (vic)
-Prosecution powers are in ‘Criminal Procedure Act 2009 (vic)
-Imprisonment powers are in ‘Corrections Act 1986’ (vic)
Arrest Powers
Police can arrest without warrant anyone they find committing sum/indict offence if police believe necessary to:
-ensure offender appears in court
-Preserve Public Order
-Prevent continuation or repetition of offence or commission of further offence
-Ensure safety/welfare of public or offender
Police can also arrest without warrant if they have reasonable grounds to believe a person has committed
-an indictable offence in Vic
-an offence elsewhere which would be an indictable offence in Vic
Police can use reasonable force when making arrest “reasonable” depends on circumstances.
Arrest rights
-Police have no power to detain an individual unless they are under arrest. therefore an individual can refuse to attend police station if x been arrested
-individual must be informed of reason for arrest at time of arrest
- after arrest individual must be released
(Unconditionally or on bail or brought before bail justice or magistrate within reasonable time of being taken into custody)
Questioning Powers
Police can request name and address if committed offence or may be able to assist in the investigation of indictable offence
Questioning rights
Police must formally caution them of the following:
-they have right to remain silent but anything they say/do may be given as evidence in court
-can communicate with a relative or friend to inform them of whereabouts and/or a legal practitioner in private
-Police must arrange interpreter and defer questioning if arrested person has insufficient english
- parent guardian or independent person must be present if arrested is under 18 or has intellectual disability
Imprisonment Powers
under ‘Corrections Act 1986’ (vic) prison officers can
-search and examine any person
-Seize unauthorised goods
-arrange medical tests for drugs and alochol
-Require prisoners to be electronically monitored
Imprisonment Rights
under ‘Corrections Act 1986’ (vic) prisoners have right:
-be in open air at least one hour per day
-adequate food (incl dietary)
-suitable clothing
-access reasonable medical and dental care treatment
-access special care if disability or mental illness
-practice religion
-receive one half hour visit per week
Role of Courts in Criminal Cases
- Manage, hear & determine criminal case if accused pleads not guilty
- impose sanction if accused pleads or is found guilty
- Committal proceedings
-Committal mention: accused pleads guilty or not, case may be sent to be heard summarily
-committal hearing: if accused pleads not guilty, magistrate determines whether enough evidence to support conviction in higher court
Magistrates Court Original & appellate jurisdiction
OJ:
-summary offences
-indictable offences heard summarily
-committal proceedings for indictable offences
-bail and warrant applications
AJ: no Appellate jurisdiction
County Court Original & Appellate jurisdiction
OJ:
-most indictable offences e.g culp driving, theft
-cannot hear indict offences in extreme cases e.g treason, murder/ manslaughter
AJ:
hears appeals from mag court on questions of fact against convictions (if found guilty) and sentences
Supreme Court (trial division) Original & appellate jurisdiction
OJ:
-all indictable offences however generally hears most serious cases that x be heard by county court like murder
AJ:
-hears appeals from mag court on questions on law
Supreme Court (Court of appeal) Original & Appellate Jurisdiction
OJ: X
AJ:
-hears appeals from county and Supreme (trial div) courts
-hears appeals from mag court if chief mag has heard case
-generally heard by three judges and can be on questions of conviction, severity of sentence of questions of law
-court of appeal must grant ‘leave to appeal’
Important: appeals from supreme court (appeal) gos to high court, leave is required
When and when not are juries required?
compulsory in OJ of county and supreme court (TD) to determine guilt of accused
not used in Mag courts, appellate jurisdiction of courts or if accused has plead guilty
What is Composition of Jury?
Governed by juries act 2000 (vic)
-12 jury members deliberate and decide guilt, three extra can be empanelled to sit in reserve for lengthy trials in case a jury member must withdraw
-members must be >18 and be enrolled to vote
-members are selected at random and are sent a form to determine eligibility, if elig, r sent summons to attend court
When is a jury member disqualified?
Unable to serve on jury due to background
-sentenced to term of imprisonment for three or more years
-currently on bail or remand
-undischarged bankrupts
When is a jury member ineligible?
Unable to Serve due to occupation or particular characteristic
-judges, magistrates, lawyers, police officers, members of parlia.
-unable to communicate , insuff. english, physical disability that renders them incapable of performing jury service.
When is a jury member excused?
Unable to serve due to difficult circumstances
-poor health, live more than 50km away, advanced age, financial hardship, carers w dependents, unable to be impartial
what is Role of criminal Jury?
jury in criminal trial must
-concentrate during trial and listen to all evidence
-piece together evidence and decide verdict
-jury must try to reach unanimous verdict of 12/12, if x possible judge may accept majority verdict 11/12 for offences other than murder/treason, if x possible, there is hung jury and accused can be retired at later date (mistrial)
What difficulties do aboriginals face in crim justice system
Underlying Disadvantage
Language differences
Cultural differences
What is the underlying disadvantage FNP experience
-FNP experience underlying interconnected disadvantages in health, educaiton, housing and employment
-FNP occupy public space more often than normal Aus due to socio-economic status and their connection to land-> leads to increased Police Surveillance and contact w criminal justice system as accused persons or victims of crime
What are issues with Language Differences with FNP?
long roundabout explanations= seen impolite to give short answers for FNP
FNP consider eye contact as rude
What are some issues w cultural diffs with FNP
Customary laws of FNP groups can come into conflict w aus crim justice system
-Elders are involved in sentencing an offender and may even carry out punishment
-Punishment is aimed at restoring balance and to maintain and recognise relationships
How are difficulties with FNP addressed?
-Dedicated funding for aboriginal Legal aid to ensure professional and cult appropriate legal services r available (VALS)
-Developing specialised courts and programs to ensure cultural diffs are addressed (koori court)
What are five purposes of sanctions?
Punishment
Protection
Denunciation
Deterrence
Rehabilitation
What is the purpose of sanctions
if accused is found guilty or not, judge or mag will determine penalty
‘Sentencing Act 1991’ (Vic) sets out purpose for which sanctions may be imposed, judge must not impose sentence more severe than necessary to achieve purpose of sanction
Purpose of punishment as sanction
-Punishment involves penalising offender and holding accountable when they have done something unacceptable
-ensures retribution for victims& families, discourage from enacting revenge
-Imprisonment is ultimate form of punishent
Purpose of Protection as Sanction
-achieved by removing offenders from society
-some offenders sentenced to long periods of imprisonment bc deemed a danger to society
-horrendous crime, lack of remorse or offender’s callous attitude indicates a person should be removed from society
Purpose of Denunciation as Sanction
-Court aims to publicly and formally criticise offender’s criminal behaviour.
-court expresses its disapproval of offenders actions to highlight how offender has violated moral and ethical standards of society
-Denun. often emphasised in cases involving offending that could be undertaken by many members of society
Purpose of Deterrence as Sanction
Aims to prevent offender, or gen. public from reoffending or committing a crime
specific deterrence
- offender themselves is discouraged from committing offences of same/similar nature through sanction
-effective. depend on offenders personal circumstances.
Gen. Deterrence
-Individs other than offender r discourage from committing offences of same/ sim nature to avoid recieving sanction as offender
-Effectiveness depends on public knowing & understanding sanction
Purpose of Rehabilitation as Sanction
-Achieved by sanctions that seek to break cycle of offending and address underlying causes of crim behaviour
-society’s best interest to help offender reform to reduce crime rates & costs of imprisonment
-offenders are provided with opportunities such as counselling, education & training to provide w better future & willing to be law abiding citizen
CALD
Culturally and linguistically diverse people,
refers to ppl born overseas in countries other than english speaking countries
some stats
27.6% aus born overseas
48.2% children have one parent or both born overseas
21.4% of aus speak lang other than english at home
What issues do CALD ppl face
Limited awareness and familiarity
-Legal system in country of origin may be diff
-crim justice system is complex, daunting and overwhelming, CALD ppl may seek support from legally untrained individuals in own community as opposed to legal institutions
-CALD pp may be unaware of specific rights in defending charge and accessing legal rep or legal aid
Language Differences
-Low lvl of english will hinder ppl’s ability to communicate w lawyers, police and court personnel
-May require an interpreter however there are shortages
How do we address difficulties for CALD people
Various courts & service providers VLA provide free interpreters, Vic govt also offers victims of crim interpreter friendly help line
-info & resources available in diff langs
-specialist community legal centres of asylum seekers and refugees
-Advice, resources& training r provided to court personnel to ensure they promote principles of justice
What is considered ‘Young People’
-those aged less than 25
-child in vic is a person aged less than 18
what disadvantage do young people face
Intersectional disadvantage
-young ppl at risk of interacting w crim jus system r those experiencing homelessness, CALD or FNP or have experienced family violence
-the younger a child first sentenced, the more likely to reoffend
How are these difficulties towards young people addressed?
-Youth Law victoria= legal centre for young ppl and can assist w range of crim charges
-youth diversion programs r used in childrens court to redirect yp away from crim js system
-currently national debate of increasing age of crim responsibility from 10 to 12 then hopefully 14
What are fines (non-custodial)
a monetary penalty that is paid by offender to the state, not victim
-expressed in penalty units ranging from one to 3000, PU=192$.31
Community Correction orders (non Custodial)
-allows offender to remain within community with certain conditions attached
-CCO can be imposed alongside fine or imprisonment of one year or less to be served upon release
-can be imposed if offence is punishable by 5 PU or more , and offender has agreed
-single offence max is 2 years, multiple offences up to 5
What are the Mandatory requirements for a CCO
-not reoffend during duration of CCO
-not leave vic without permission
-Notify CCO supervisor if change of address
-Comply w directions given by CCO
What are some optional Requirements for a CCO
-completing unpaid community work (x exceed 600 hours)
-abide curfew
-Undertake medical treatment of rehab program for drugs/ alcohol
-Avoid contact w particular person
-stay away from particular place or suburb
-ankle monitoring
-x consume alcohol or attend licensed venues including bars/nightclubs
Imprisonment (Custodial)
-sanction that removes an offender from community and places them in prison for given period of time
-provides minimum period of impris after which an offender can apply for parole (early release)
Aggravating Factors
Facts or circumstances about offender or an offence that can increase offenders culpability and lead to more severe sanction
Mitigating Factors
Facts or circumstances about offender or an offence that can decrease offenders culpability and lead to a reduction in sentence
Guilty Pleas
-occurs when person admits they committed offence they have been charged
- if multiple charges, accused can choose to plead guilty to some or all
-if plead guilty during pre trial, trial x conducted
-the earlier guilty plea, the more lenient the sentence will be as offender= rewarded for accept responsibility
Victim Impact Statements
-account written by ppl (in)/directly impacted
-provides insight into effects of offence
-informs judges decision and impact severity of sentence
-statement is given voluntarily
What is the Drug Court?
a specialist court that can impose a drug and alcohol treatment order (DATO) on offenders who commit crimes while under influence of drugs
-Division of Magistrates court as well as County Court
An eligible offender must:
-reside in an area serviced by drug court
-plead guilty to the offence
-be dependent on drugs and/or alcohol that contributed to their offending
-be facing an immediate term of imprisonment not exceeding two years in magistrates court of four years in the county court
-be facing charges that are not sexual offences or involve the infliction of actual bodily harm
What is a DATO?
A Drug and Alcohol Treatment order rehabilitates by providing a judicially supervised, therapeutically orientated treatment programs. there are two parts:
Treatment and supervision
-Core Conditions: not commit offence punishable by imprisonment, report to and accept visits from relevant officers, give notice of address change, not leave Victoria without permission
-Program conditions: submit to testing, attend vocational or educational programs, attend medical or psychological treatment, not associate with specified people, reside in a specified place
Custodial
-Drug Court must impose an imprisonment sentence not exceeding two years (Magistrates) or four years (County). this sentence is deferred while offender undergoes treatment and supervision.
What is the Koori Court & and how can you be eligible?
A division of the magistrates Court, Children’s Court and County Court that operates as a sentencing court for FNP.
-process is less formal than usual, encourages open dialogue btwn parties. Elders, respected Persons and family members are empowered to contribute to the discussion.
-magistrate or judge is ultimate decision maker and has same sentencing options available as normal courts
to be eligible:
-be a FNP
-Plead Guilty
-Consent to case being dealt with by Koori Court
-be facing charges that are not sexual offences
What are Diversion Programs & how can you be eligible?
Methods used in Mag & Children’s court to redirect offenders away from crim just system and avoid crim record.
Intended for first time offenders or low-risk people who have committed summary offences (minor drug use/possession or crim damage)
to be eligible:
-have commit summ or indict offence triable summarily
- acknowledge responsibility for offence to the court
-be considered appropriate to participate by the court
-consent to the program (along w prosecution)
-Be facing a charge that doesn’t have minimum or fixed sentence (suspension of license)
if court agrees to offender’s request for diversion, offender is redirected from sentencing court and placed on diversion plan, proceeding is adjourned for up to 12 months to enable them to participate. plan may include:
-obtain drug or alcohol treatment or engage with counselling
-Write an apology letter to the victim
-undertake education course
-make donation to charity or complete community work
If successful, offender does not have to put in a plea, if unsuccessful, offender is sentenced accordingly.
