Unit 3 AOS 1 Flashcards
Summary offence
Is a minor crime that is generally heard in the Magistrates’ Court
–>drink driving, minor assaults
Indictable offences
Serious offences generally heard before a judge and jury in the County Court or the Supreme Court and is first heard in the Magistrates court -commital hearing
The burden of proof
refers to which party has the responsibility to prove the facts of the case. falls on the Prosecution
the standard of proof
refers to the level of certainty or strength of evidence required to prove the case. The prosecution must prove the case beyond reasonable doubt.
The presumption of innocence
means that if a person is accused of committing a crime, they are considered innocent until proven guilty.
-an accused has the right to silence, prior convictions are not revealed in trials.
Key principles of the criminal justice system
the burden of proof, the standard of proof, the presumption of innocence.
Rights availiable to an accused
The right to be triend without unreasonable delay, the right to silence, the right to trial by jury.
Accused- the right to be tried without unreasonable delay
An accused is entitles to have their charges heard in a timely manner and that delays only occur if they are considered reasonable.
Accused- the right to silence
the accused has a right to refuse to answer any questions and does not have to give any information as part of the investigation of a crime
accused- the right to trial by jury
A person charged with an indictable offence is entitled to be tried by their peers. protected under the juries act and section 80 of the aus cons
the rights available to a victim
right to give evidence using alternative arrangements
right to be informed about the proceedings
right to be informed of the likely release date of the offender
right to give evidence using alternative arrangements
victims who are witnesses in some cases, like sexual offenses or family violence, are able to give evidence using alternative arrangements
These include giving evidence using a closed circut tv
the use of a screen between the accused and the witness
he use of a support person
protected under the criminal procedure act
right to be informed about the proceedings
are entitled to be informed at reasonable intervals about the progress of an investigation into a criminal case, unless they do not want it.
right to be informed of the likely release date of the offender
a person who is a victim of a criminaal act of violence may apply to be inlcuded on the victims register.
Once they are on the register they may receive certian information about an offender such as release date of parole.
What is the role of the VLA
VLA is a government agency that provides free legal information to the community, and legal advice and legal rep for people who cannot afford to pay for a lawyer.
purpose of vla
provide legal aid in the most effective, economic and efficient manner
provide the community with improved access to justice
types of assistance for accused people/ victims from vla
free legal information, free legal advice, duty lawyer services, grants of legal assistance
strengths of vla achieving fairness
The provision of duty lawyers in the courts provides
advice and assistance to various accused persons,
ensuring a fair hearing for these individuals.
The VLA is guided by the Victims Charter to
uplift victims and ensure their rights set out in
the Charter are protected. The Charter is legally
binding which ensures VLA treats all victims fairly
strengths of vla achieving equality
provides free information on its website to all accused people and victims, regardless of personal characteristics,
VLA ensures those who are disadvantaged are prioritised in receiving legal aid, thus promoting equality
VLA has staff that speak many languages, all victims are abke to obtain information regardless of their language
strengths of vla achieving access
VLA provides free information on its website which
is accessible to all accused people and victims.
Duty lawyers and grants of legal assistance
increase an accused individual’s access to the
justice system and criminal proceedings, ensuring
they can participate in the processes in an informed manner
weaknesses of VLA achieving fairness
VLA’s limited budget means it is only able to
provide legal advice and representation to a
small number of accused persons- therefore limited in
its ability to ensure all individuals can understand
the case against them, participate in the criminal
proceedings, and adequately present their case.
weaknesses of VLA achieving equality
The eligibility requirements for a duty lawyer
or grants of legal assistance from VLA are
strict, meaning very few individuals can gain
access to free legal representation- therefore limiting equality as these individuals are not uplifted to receive the same treatment as those who can afford representation in the justice system.
weaknesses of VLA achieving access
The means and income tests prevent many Victorians from accessing many services of VLA, such as tailored advice and legal representation, hindering access to justice.
VLA does not provide advice about all types of
matters, therefore, limiting accessibility to justice
for parties involved in these legal matters
the role of clcs
to provide accused people with information, legal advice and ongoing assistacne in a case. They provide legal education to the community and advocate for changes to teh justice system to address what they see as unfair laws, policies or practices.
types of clcs and definition
generalist
- they provide broad legal services to people in a particular geographical area
specialist
- they focus on a particular gorup of poeple or area of law.
type of assistance of accused- clc
basic legal info
legal advice and assistance
ongoing casework
type of assistance of victims- clc
basic legal info
legal advice and assistance
ongoing casework
duty lawyer services
strengths of clc achieving fairness
CLCs provide high quality, free legal support,
and education to members of the community.
This enables individuals to adequately participate
in legal proceedings and present their cases in the
best light, encouraging just and fair outcomes.
Victims of crime are able to receive legal support
from professionals, therefore easing the emotional
stress of the trial. This can allow victims to better
participate in court proceedings and provide
accurate statements to the court, promoting
a just and fair outcome.
In some circumstances, CLCs can provide legal
representation to accused individuals. This promotes
fairness as the accused is provided with necessary
assistance to navigate the complex criminal justice
system and adequately present their case.
limitations of clc acheiving fairness
CLCs often cannot provide legal representation
in court. This means many accused individuals
without financial means to gain legal representation
must self-represent, unless they are eligible for
assistance from VLA
CLCs cannot provide assistance to all victims of
crime, meaning some victims may not be able to
participate in the justice system, limiting fairness
strengths of clc acheiving equality
CLCs often provide an interpreter service to ensure
those from non-English speaking backgrounds can
access legal assistance, promoting equality in the
justice system.
CLCs can provide specific advice to victims and
cater to their individual circumstances, ensuring all
people, regardless of personal characteristics such
as race, gender, or disability, receive appropriate
legal information.
limitations of clc acheiving equality
Eligibility requirements for duty lawyers or legal representation from a (CLC) are strict, limiting access to free legal aid. While prioritizing those in dire need, individuals in the middle ground are often excluded, creating inequality in the justice system.
strengths of clc acheiving access
Offer free legal advice and information, improving access to the legal system.
Specialize in certain areas of law, providing personalized assistance.
Are available in various locations, including regional areas, and offer phone consultations.
Provide victims with specific legal assistance and support, aiding in applications and documentation, thus promoting access to justice.
limitations of CLC acieving access
As CLCs usually provide assistance for relatively
minor criminal matters, they do not promote
access to resources for those charged with very
serious criminal matters.
There are not as many CLCs located in rural parts
of Victoria, limiting access to legal assistance for
those in remote areas.
CLCs are limited in their ability to facilitate access to
legal resources and support due to a lack of funding.
define plea negotiations
they take place between the porsecutour and the accused abotu teh charges aginst the accused. THey can result in an agreement being reached between the two parties about teh accused pleading guilty in exchange for seome charges beibng droped or soemthing else
purposes of plea negotitaions
ensures certainty of the outcome
to save on costs, time and resources because of early guilty plea
to achieve a prompt resolution to a criminal case wihtout the stress, trauma and inconvienence of a trial
circumstances when plea negotiations are appropriate
the accused is woling to plead guilty
they wish to aoid the costs and time of a trial
accused is rep themselves
victims and witness are reluctant to give evidence.
The prosecution believes some witnesses may not be
believable when giving evidence before a jury, reducing
the likelihood of a conviction being secured.
circumstances when plea negotiations are not appropriate
The accused is not prepared to plead guilty to any charges.
The alleged offending is serious to the point that a
conviction for lesser charges is not in the public interest
and the perception that the accused ‘got off lightly’ will
be too great.
plea negotiations strengths in achieving fairness
Plea negotiations may result in the accused
pleading guilty to a charge that adequately reflects
the crime, leading to a just outcome to the case.
Plea negotiations secure a conviction in cases
where witnesses may be reluctant to give
evidence, or where evidence is inadmissible in
court, providing an alternative avenue for securing
a conviction, without the need for the matter to
proceed to trial.
plea negotiations weaknesses in achieving fairness
Where plea negotiations result in the accused
pleading guilty to a charge that does not adequately
reflect the crime, this may result in the community
believing the accused has been ‘let off’. This could
lead to the impression that the outcome was unfair.
Plea negotiations may be seen as undermining the
achievement of fairness as they are conducted in
private, which does not achieve the public element
of a fair trial.
plea negotiations strengths in achieving equality
Personal characteristics, such as the accused’s
gender and income, are not relevant during plea
negotiations, therefore ensuring unbiased and
equal treatment.
Both the accused and prosecution can request a
plea negotiation, promoting equal engagement in
the criminal justice system without disparity.
plea negotiations weaknessees in achieving equality
Plea negotiations are not available to all accused
persons as they are only possible if the prosecution
agrees to it. Therefore, there is not always an equal
opportunity for accused persons to enter into
a plea negotiation.
plea negotiations strengths in achieving access
Plea negotiations save courts time and resources
by allowing cases to be resolved before going
to trial. This minimises delays and frees up the
courts’ resources to make the legal system more
accessible for cases that do need to go to trial.
plea negotiations weakneses in achieving access
*
Access to plea negotiations may be limited for
some accused persons as the prosecution has to
agree to one.
*
Plea negotiations are conducted in private, meaning
victims, their families, and society cannot engage in
this process, reducing the achievement of access.
Specialisation
within the hierarchy the courts have been abke to develop their own areas of experitise.
court of appeal- appeals
suprmem trial div- hears the most serious indictable offences
county court- experties in partuclur types- drug offences
magistrates- summary offences that nees to be dealt with quickly and effectiently
appeals
if there are goeund for appela, a party who is disatisfied wuth a decision in a criminal case can take the matter to a higher court to challenge the decision.
court hierarchy uphold fairness
As individual courts are able to develop their expertise in dealing with particular crimes and areas of law cases are presided over by skilled and knowledgeable judges who are able to ensure open and impartial processes and thus a just outcome.
court herarchy does not uphold fairness
Some offenders may not be able to appeal the outcome of a case in a higher court if they cannot afford the fees associated with an appeal. This limits the ability of an offender to have any errors in the outcome resolved, meaning, in such cases, the court hierarchy may not deliver a fair outcome for all.
court hierarchy uphold equality
The court hierarchy facilitates the ability to appeal the outcome of a case, regardless of race, sex, or gender given their appeal is on valid grounds and the judicial officer presiding over the case has given the party leave to appeal.
court hierarchy does not uphold equality
Due to the costs associated with an appeal, appeals are not equally accessible to all parties. As a government department, the Office of Public Prosecutions has the necessary resources to fun an appeal, compared to accused individuals, who may not have the resources to do so. Thus, some parties may face disadvantage in being unable to appeal against a wrongful outcome due to their socioeconomic status.
court hierarchy uphold access
enabling the appeals process to occur, which facilitates the review of judicial decisions. These better enables accused persons to engage with the justice system and its processes.
specilisation allows criminal cases to be resolved in a more efficient manner due to the knowledge and expertise of judges within a court. Therefore delays are minimised and more people can access the criminal justice system in a more timely manner.
court hierarchy not uphold access
Grounds for appeal must exist and leave to appeal may be necessary. This may render some cases ineligible for a review by a higher court, meaning access to appeals can be limited.
The cost of engaging legal representation for the appeals process can be inaccessible to those who do not have the financial means. This limits an accused ability of engage with the criminal justice system and its processes.
The role of the judge
act impartially
manage the trial or hearing
decide or oversee the outcome of the case
sentence an offender
roles of the judge- act impartially
the judge must remain impartial to ensure a fair trial.
it ensures public confidence in the court justice system
role of the judge- manage the trial or hearin g
they are required to make sure that correct procedure is followed
ask occasional questions of a witness
make decisons such as whether evidence is permitted
adjust trial processes if neccessary- tkaing a break
role of the judge- decide or oversee the outcome of the case
in the county and supreme court, a jury will decide on the guilt not the judge but they must ensure the jury understands their role
they have to give directions to the jury to ensure a fair trial
summarise the case to the trial
role of the Magistrate- decide or oversee the outcome of the case
the magistrate has the role of deciding whether the accused is guilty
they are required to listen to teh cases presented by both parties
role of judge and magistrate- sentence the offender
the judge or magistrate must follow the sentencing guidelines and comply with legislation, listen to vis and suggestions to apply the mos appropriate sentencing.
how does the judge and magstrate achieve fairness
An independent judge or magistrate ensures the trial and court procedures and conducted fairly, without bias and according to the rules of evidence.
Judges give directions to the jury and must explain the key legal concepts of a criminal trial to ensure jurors remain impartial and informed in their decision making
how does the judge and magstrate not achieve fairness
Judges and magistrates can only explain court procedures and legal terminology to the parties and cannot provide additional legal advice or information to a self-represented party. This can increase the likelihood of an unfair trial for self-represented individuals due to the complexities and formalities of a criminal trial.
how do judges and magistrates uphold equality
Judges and magistrates ensure rules of evidence and procedure apply equally to both parties and are consistent across all criminal trials.
how do judges and magistrates not uphold equality
While judges and magistrates are impartial judicial officers, they are still subject to personal bias and therefore, may subconsciously discriminate against certain parties, hindering equality.
