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Legal notes > Unit 3 AOS 1 > Flashcards

Unit 3 AOS 1 Flashcards

1
Q

What are the principles of justice?

A

Fairness
Equality
Access

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2
Q

What is fairness?

A

Fairness is ensuring impartiality within the processes within the legal system so that parties are not favoured or treated with discrimination

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3
Q

What is equality?

A

Equality means that everyone should be given the same rights and opportunities regardless of their individual characteristics or disadvantages

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4
Q

What is access?

A

Access refers to the ability for individuals to utilise the legal system to resolve disputes in a just manner

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5
Q

What is the key legislation for the criminal justice system?

A

The Victorian Crimes Act 1958
The Victorian Summary Offences Act 1966
Criminal Procedure Act 2009

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6
Q

What are summary offences?

A

Summary offences are less serious criminal offences that are heard before a magistrate and do not require comittal hearings.

E.g. driving offences, property damage, offensive behaviour

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7
Q

What are indictable offences?

A

Indictable offences are serious criminal offences that are heard by a judge (and jury if accused pleads not guilty), require committal hearings and can also be heard summarily in the magistrates court (only less serious indictable offences).

E.g. rape, culpable driving, robbery, aggravated assault, murder

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8
Q

What is the presumption of innocence?

A

A legal principle that sates that every person accused of a crime is presumed to be innocent, until they have gone before a court and have been found guilty

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9
Q

What are rights of the accused?

A

Rights of the accused are fundamental entitlements an accused is given within the criminal justice system

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10
Q

What are the three rights of the accused?

A

The right to be tried without unreasonable delay
The right to a fair hearing
The right to trial by jury

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11
Q

Sources of human rights

A

Charter of Rights and Responsibilities 2006 (Vic)
International Covenant on Civil and Political Rights (1966)

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12
Q

What is the right to be tried without unreasonable delay?

A

A person who is charged with a criminal offence is entitled without discrimination, to a garuntee that they will be tried without unreasonable delay

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13
Q

What does the right to be tried without unreasonable delay involve?

A

Sexual offences must be heard a maximum of 3 months after the accused has been committed and other indictable offences must be heard a maximum of 12 months after the accused has been committed

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14
Q

What is the right to a fair hearing?

A

The right to a fair hearing entitles a person who is charged with a criminal offence the right to have the matter decided by a competent, independent and impartial court after a fair and public hearing

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15
Q

Bail hearings

A

A bail hearing is a criminal pre-trial procedure but it is not a right and it is protected under the Bail Act 1977 (Vic)

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16
Q

What is the right to trial by jury?

A

When an accused pleads not guilty to an indictable criminal charge, they are entitled to have a jury determine their guilt in court

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17
Q

Compostion of a jury

A

A criminal jury is made up of 12 jurors that are randomly slected from the community and the Juries Act 2000 (Vic) governs composition and responsibilities of the jury. The jury then determines the guilt of the accused beyond reasonable doubt

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18
Q

Importance of the jury

A

The jury allows for members of the community to embed the community views and values into their decision, allows the community to participate in the legal system, spreads the decision making and this helps to avoid the possibility of bias or discrimination and it ensures that the judge is not the only one person making a decision on the guilt of the accused

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19
Q

Who is a victim?

A

A victim is a person who has either been directly or indirectly impacted by a crime

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20
Q

What are the three victims rights?

A

The right to give evidence as a vulnerable witness
The right to be informed about proceedings
The right to be informed about the likely release date of the accused

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21
Q

What is the legislation surrounding victims and what is its purpose?

A

The Victims Charter Act 2006 (Vic) - its purpose is to define and recognise the rights of victims and provide advice to th e Vic criminal justice system on how to respond and support them

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22
Q

What does the right to give evidence as a vulnerable witness mean?

A

The right to give evidence as a vulnerable witness refers to adjustments courts can make to ensure victims provide evidence in a less intimdating and more fair, equal and accessible environment

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23
Q

Who is a vulnerable witness?

A

A vulnerable witness is some children/people under 18, people with cognitive impairment, victims of sexual offences, victims of family violence and and victims of obscene or threatening public behaviour

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24
Q

What are alternative arrangements for giving evidence?

A

Victims can give evidence in a location other than the court room, use screens to remove the accused from their line of sight, give evidence in-chief, give evidence in a special hearing (sexual offences when the victim is under 18), permit an approved suport person to be present and require legal reps to not wear robes

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25
Q

What is the right to be informed about proceedings?

A

The right to be informed about proceedings ensures that the victim has the right to be informed at reasonable intervals about the progress and investigation into a criminal offence unless the victim requests not to be given information or if it the disclosure may harm the investigation

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26
Q

What does the right to be informed about proceedings involve?

A

The victim has the right to be infromed about the charges against the accused, the reason if there are no charges, decision to modify the charges (guilty plea for lesser sentence), how to find date, time and place of a hearing, the outcome of proceedings including the sentence imposed and details of an appeal if one is initiated

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27
Q

What is the right to be informed about the likely release date of the accused?

A

The right to be informed about the likely release date of the accused means that a person registered on the Victim’s Register may recieve certain information about an offender such as their likely release date or their likely parole release date (if applicable)

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28
Q

What is Victorian Legal Aid?

A

Victorian Legal Aid is an independent, government-funded organisation that has been established to ensuree that Victorians who cannot afford a private lawyer recieve assistance with their legal problems

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29
Q

Will everyone who applies for VLA recieve assistance?

A

No, people who apply have to pass the means and the merits test.

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30
Q

What is the means test?

A

The means test is a test that is assessed on the clients income, existing assets and weekly living expenses

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31
Q

What is the merits test?

A

The merits test assesses what benefit the grant will have on the client, community or particular section of the community, what detriment refusal of service will have on the client, community or a particular section of the community

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32
Q

How can VLA assist?

A

It can provide online info and printed info, help via phone/web-chat, face to face info and referal, duty lawyers and grants of legal assistance

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33
Q

What are Community Legal Centres?

A

CLCs are independent, non-profit, community-based centres that provide free and accessible legal aid related services

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34
Q

What are the two types of CLCs?

A

Generalist and specialist CLCs

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35
Q

What are generalist CLCs?

A

Generalist CLCs provide broad legal services to people in a particular area or LGA, tends to target certain suburbs with a demand for a particular service

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36
Q

What are specialist CLCs?

A

Specialist CLCs focus on a particular group of people or area of law

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37
Q

Who can CLCs assist?

A

CLCs will generally provide assistance to individuals that fall within their specialist category and vulnerable clients

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38
Q

What are committal proceedings?

A

Committal proceedings are criminal pre-trial procedures that are used to determine the whether or not the prosecution has sufficient evidence to support a conviction in a higher court. The processes are governed by the Criminal Procedure Act 2009 (Vic).

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39
Q

Purposes of a committal proceeding

A

The purposes of committal proceedings are to determine whether the accused pleads guilty or not guilty, inform the accused on the case against them, enusre a fair trial and determine whether the offences can be heard summarily before a magistrate.

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40
Q

What is a hand up brief committal hearing?

A

A hand up brief is a collection of all the prosecutions evidence in document form. 42 days before the hearing is the brief presented to the accused and the magistrate who will review the evidence, hear arguments on the day, and determine if the case will proceed to trial.

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41
Q

What is a contested committal hearing?

A

A contested committal hearing is held if the accused wants to question the witness in the hand up brief. They must notify the court of this atleast 5 days prior to the hearing.

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42
Q

Strengths of committal hearings

A

Uphold the accuseds right to be presumed innocent until proven guilty, enables accused to properly prepare or their trial by allowing them to see the evidence against them, accused is informed of the case, saves time and resources by filtering out weaker cases, tests the strength of the prosecutions case and the prosecution is the given the chance to withdraw or combine charges

43
Q

Weaknesses of committal hearings

A

Doesnt promote fairness and equality because accused doesnt have to present any of their own evidence, can contribute to increased stress and trauma for victims, very complicated processes, dismiss very little number of cases so may be considered a waste of time, can add further costs of legal representation and can add delays to hearings

44
Q

What are plea negotiations?

A

A plea negotiation is a private and informal negotiation between the accused and the prosecution

45
Q

What are the purposes of plea negotiations ?

A

Early plea deals can save time and costs and if a criminal case is resolved with a guilty plea than it must reflect the crime that was committed

46
Q

Strengths of plea negotiations

A

The prosecution is able to get a conviction for the crime and offender is sanctioned quickly, negotiations save the cost of a full trial and also minimise delays, limit backlogs that may occur in higher courts, victims and families are saved the trauma and negotiations ensure that there is a certainty in the outcome

47
Q

Weaknesses of plea negotiations

A

The process of negotiations lacks transparency - no legislative guidelines, self-represented individuals may feel pressured into accepting a deal, controversy can arise when serious charges are downgraded, the victimis dont get the chance to testify so justice is not done, offenders who have committed serious crimes are back in the community earlier, an inexperienced defence lawyer may encourage the accused to plead guilty when they could have been acquitted and if negotiations do not succeed then either party may be disadvantaged

48
Q

What are sentence indications?

A

Sentence indications are another method to encourage the accused to plead guilty early, it is made on the request of the defence and it indicates wether the accused will recieve a custodial or non-custodial sentence if they plead guilty

49
Q

What legislation covers sentence indications?

A

The Criminal Procedure Act 2009 (Vic)

50
Q

What are the purposes of sentence indications?

A

The purposes are to provide the accused with clarity about the likely sentence that will be imposed and they save time, cost, resources, stress and inconvenience

51
Q

Strengths of sentence indications

A

Sentence indications can lead to an early guilty plea, beneficial for an accused with no legal representation, can lead to trials being avoided, victims can still provide impact statements, accused is provided with clarity, more likely to be accepted by the community than plea negotiations, can be conducted in open court, save court time and resources and reduce victim trauma

52
Q

Weaknesses of sentence indications

A

Can prioritise court efficiency over intersets of the victim and the community, an accused may feel pressured to plead guilty, victims are denied there day in court and this may reduce the feeling that justice is done and factors that affect sentencing may be unknown by the judge at the time that the indication is given

53
Q

What is original jurisdiction?

A

Original jurisdiction is a courts ability to hear or determine a matter in the first instance

54
Q

What is appellate jurisdiction?

A

Appellate jurisdiction is a courts ability to hear matters on appeal

55
Q

What is a court hierarchy?

A

A court hierarchy is a ranking of courts in order from inferior to superior

56
Q

What are the two reasons for a court hierarchy in the criminal justice system?

A

Specialisation and appeals

57
Q

What is specialisation?

A

Specialisation refers to a court developing expertise or a very thorough knowledge and experience in a particular area.

58
Q

What are appeals?

A

Appeals refer to having the ability to have your matter/case heard for a second time by a more superior judge/court

59
Q

What is the Koori court?

A

The Koori court is a specialist court that operates in the Magistrates, County and Childrens court and provides services to First Nations People and it allows them to have a Koori Elder and their family to participate however they must plead guilty to gain access to it

60
Q

What is the Childrens court?

A

The Childrens court has two divisions, the family and criminal and it has jurisdiction to hear summary and indictable cases (except those regarding homicide/death) relating to children between 10 and 18 years old (or 19 at the time of hearing) and it has jurisdiction to hear and determine committal proceedings, bail and sentencing orders

61
Q

Who are the key personnel in a criminal trial?

A

The judge, jury, prosecution (barristers and solicitors) and the legal practitioners for the accused

62
Q

What is the judge in terms of key personnel?

A

The judge/magistrate is a legally experienced individual who has been appointed by the Governor Council in order to administer the law when presiding over a case

63
Q

What are the roles of the judge in terms of key personnel?

A

Their roles are to remain impartial and neutral, ensure that the law is applied correctly, assist a person representing themselves and to not intervene unnecessarily

64
Q

What are the responsibilities of the judge in terms of key personnel?

A

Their responsibilities are to manage the trial, decide on the admissibility of evidence, attend jury matters and hand down a sentence

65
Q

What is the jury in terms of key personnel?

A

Juries are made up of members of the community that are randomly selected off the Victorian Electoral role to participate in the justice system

66
Q

What are the roles of the jury in terms of key personnel?

A

The roles of the jury are to remain impartial and unbiased, listen to the evdidence and facts presented , apply the law based on guidance from the judge and to make their decisions based upon community values and standards

67
Q

What are the responsibilities of the jury in terms of key personnel?

A

Their responsibilities are to listen to all evidence submissions from both parties, listen to the jusdge explain the law, decide questions of fact and to reach and deliver a verdict

68
Q

What are the parties in terms of key personnel?

A

The parties are the accused and the prosecution and each party is responsible for presenting the relevant evidence to support their case

69
Q

What is the role of the parties in terms of key personnel?

A

The role of each party is to manage and control their case

70
Q

What are the responsibilities of the parties in terms of key personnel?

A

Their responsibilities are to enter a plea, present opening and closing addresses and present their case

71
Q

What are legal practitioners in terms of key personnel?

A

Legal practititioners are individuals who have been professionaly trained, qualified and are experienced in understanding the rules and procedures of the court

72
Q

Who are legal practitioners in terms of key personnel?

A

Solicitors: their role is to prepare the ‘brief’ for the barristors
Barristers: their role is to represent the party in court and they take instruction from solicitors

73
Q

What are the roles of legal practitioners in terms of key personnel?

A

Their role is to undertake the preperation, presentation and conducting of the case and are subject to many rules found within the Legal Profession Uniform Law Application Act (Vic) 2014

74
Q

What are the responsibilities of legal practitioners in terms of key personnel

A

Their responsibilities are to prepare and present the case and to comply with their duty to court (Legal Profession Uniform Law Austrlian Solicitors’ Conduct Rules 2015)

75
Q

What are sanctions?

A

Sanctions are penalties that are handed down by a court for someone who is found guilty of breaching a criminal law and are found in The Sentencing Act 1991 (Vic) e.g. fine or imprisonment

76
Q

What does the purpose of sanctions punishment involve?

A

Punishment refers to attempting to inflict some kind of loss or burden on the offender in a just manner e.g. financial loss or deprivation of liberty

77
Q

What does the purpose of sanctions protection involve?

A

Protection refers to the protection of the community against the offender/keeping the community safe by removing the offender

78
Q

What does the purpose of sanctions deterrence involve?

A

Deterrence refers to an attempt to discourage the offender from re-offending and those within the community to commit the same crime (general deterrence or specific detternece)

79
Q

What is specific deterrence?

A

General detterence aims to dissuade the offender from re-offending

80
Q

What is general detterence?

A

General detterence aims to dissuade the general public from committing crimes

81
Q

What does the purpose of sanctions of denunciation involve?

A

Denunciation refers to an attempt to demonstrate disaproval, condemn or publically criticise the actions of the offender

82
Q

What does the purpose of sanctions of rehabilitation involve?

A

Rehabilitation refers to an attempt to address the underlying reasons for the offender committing the offence and establish conditions that whould alter or modify the behaviour of the offender so that they will be able to reintergrate into society

83
Q

What are fines?

A

Fines are a monetary penalty for a low-level criminal offence

84
Q

What are community corrections orders?

A

CCO’s are a flexible sentencing order that is given to a guilty offender which entitles them to remain in the communtiy whilst complying with certain conditions imposed by the court

85
Q

What are the basic conditions of a CCO?

A

Not reoffending, not leaving Victoria without permission and reporting to CCO centre

86
Q

What are the optional conditions of a CCO?

A

Undertaking medical treatment/other rehab, remain free of alchohol/drugs, no consumption of alchohol in a lciensed venue, complete unpaid community work, be supervised, managed and monitored by a Corrections Victoria officer, live or not live at a specified address, stay away from certain addresses/places, abide by a curfew and pay a bond

87
Q

What is imprisonment?

A

Imprisonment is the most serious sanction whereby the offender is removed from society and held in custody for a defined period of time

88
Q

What are the types of imprisonment sentences?

A

Concurrent sentences, cumulative sentences and standard sentences

89
Q

What are concurrent sentences?

A

A concurrent sentence involves an offender that has committed more than one offence and the sentence of the offences can be served at the same time

90
Q

What are cumulative sentences?

A

Cumulative sentences are usually applied for serious offences and it involves all terms of imprisonment being added together to form a total period of imprisonment

91
Q

What are standard sentences?

A

Standard sentences are 40% of th maximum sentence for a crime before any factors of sentencing are taken into account

92
Q

What are mitigating factors?

A

Mitigating factors are evidence about the offender or circumstances of the crime which may reduce the severity or culpability of the criminal act and possibly reduce the sentence imposed

93
Q

What are aggravating factors?

A

Aggravating factors are evidence, facts or circumstances abput an offender that can lead to a more severe sentence

94
Q

What is a guilty plea?

A

Guilty pleas or intntions to plead guilty is when the ccused admits their involvement in the offence and therefore avoids a full trial, this is seen as a mitigating factor

95
Q

What are victim impact statements?

A

Victim impact statements are written statements filed with the court by the victim of a crime that is considered by the judge when sentencing the offender, not a mitigating or aggravating factor

96
Q

What are the factors affecting the criminal justice systems ability to achieve justice?

A

Cost, time delays and cultural diversity

97
Q

How does cost impact the ability of the criminal justice system to achieve justice?

A

The legal system can be very expensive and therefore limtis the ability of many people to use it fairly and equally and costs can arise from interviewing witnesses, drafting documents etc

98
Q

How do time delays impact the ability of the criminal justice system to achieve justice?

A

Time delays can occur as a result of lack of reosurces, time to negotiate pleas etc and it limtis justice as it can increase trauma for victims or alter the outcome of a trial

99
Q

How do cultural factors impact the ability of the criminal justic system to achieve justice?

A

Cultural factors such as language barriers, cultural norms, different laws/customs, hate crimes, experiences of trauma, underreporting, stigma and shame and women interacting with the law can decrease justice as the legal system is not properly utilised by these people

100
Q

What are reforms?

A

Reforms are changes that have been implemented within a system, organisation or as a part of policy in order to improve it or enhance its effectiveness

101
Q

What are three recent reforms?

A

Client Prioirty and Capacity Policy 2019: Victorian Legal Aid
New justice centre in Melbourne CBD 2019
Drug court expanded in regional Victoria 2020

102
Q

What is the Client Prioirty and Capacity Policy 2019: Victorian Legal Aid?

A

This reform aims to help imporve the ways in which VLA offers services and support to those who need them, thus improving the efficiency of the the criminal justice system

103
Q

What does the New justice centre in Melbourne CBD 2019 involve?

A

This reform aims to improve peoples ability to access the legsl system by providing more services to Victorians

Legal notes (5 decks)

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