Unit 3 Aos 1 Flashcards
What is criminal law?
Set of processes and institutions used to investigate and determine criminal cases.
What are committal proceedings?
Pre-trial hearings such as a committal hearing and processes held in the magistrates court for indictable offences.If the magistrate finds there is sufficient evidence the accused is committed to stand trial and the case is then transferred to a higher court (county/supreme) to hear the case.
What are committal hearings?, what is the importance of committal hearings?.
A court hearing that is held as part of committal proceedings in the magistrate court.At a committal hearing the magistrate will decide whether there is sufficient evidence to support a conviction for the offence charged.
-ensuring that cases where there is inadequate evidence do not go to trial.and waste resources within the criminal justice system.
-finding out whether the accused plans to plead guilty or not guilty
-ensuring a fair trial by making sure the prosecution’s case is disclosed to the accused
- giving the accused the opportunity to put forward a case at an early stage and possibly cross examine witnesses.
what are summary offences?, give some examples
Minor crimes that are heard and determined in the magistrate court by a magistrate. The summary offences act 1996 (vic) outlines summary offenses these include crimes such as;
-Drunk driving
-Disorderly conduct
-Minorly assault
Since heard in magistrate court, no jury needed.
Final hearing= “hearing”, where they put forth they’re case to magistrate.
What are indictable offences?,give some examples?.
Indictable offences:Serious crimes. Crimes act 1958(vic) outlines some of these offences which include,Homicide offences such as murder and manslaughter,sexual offences, some theft crimes and drug trafficking.A jury is used to determine guilt of if the accused pleads not guilty in an indictable offence
these offences are heard in the county or supreme court, by a jury and judge.
Final hearing= “trial”
What indictable offences can be heard summarily?
Some indictable offences can be heard summarily (must be a penalty under 100,000 and under 10 years imprisonment).Whether an indictable offence can be heard summarily is determined by statue, must be given consent by the accused, must be agreed to by the courts.
What is the burden of proof, who has the burden of proof in a criminal case?
Burden of proof:The burden of proof is the responsibility to prove the offenders guilt in criminal cases, the burden of proof falls on the prosecution. (exceptions in regards to the offender having the burden of proof, involve having to prove they weren’t involved in drugs, in these situations the standard of proof is the balance of probabilities)
What is the standard of proof in a criminal case?
Refers to the strength of evidence used by the prosecution who has the burden of proof to prove the offenders guilt.In a criminal case the standard of proof, is beyond reasonable doubt (Meaning the evidence must be so strong that no reasonable doubt can be present).
What is the presumption of innocence?
Refers to the right the accused has to be assumed innocent until proven otherwise.Originally a common law (court made law) now is a right protected by the victorian charter of human rights and responsibilities (2006), presumption of innocence is upheld by the high standard of proof and burden of proof
What are the three rights of the accused?
- Right to be tried without unreasonable delay
- the right to silence
-the right to trial by jury
What does the right to be tried without reasonable delay refer too?, in what law is it stated?
Protected by the human rights charter, states that person arrested, or detained on a criminal charge has the right or have their case heard with only reasonable delay.Means that an accused should be trialed in a timely manner and that delays should only occur in the instance that they are reasonable), this is regardless of their prior convictions and should be upheld without discrimination.
what does the right to silence refer too?, in what law is it stated?
Protected by common law and the evidence act 2008 (vic).States that an accused has the right to remain silence, and no negative connotation should be taken from this (their silence cannot be taken as suspicious or guilty).Some exceptions to the right to silence include an accused giving there name and address to police if arrested.
what does the right to a trial by jury refer too?, in what law is it stated?
Protected by the Australian constitution (section 80) and the juries act 2000 (vic). This allows for the community to participate in legal processes and for law to be applied to community standards.This right does not extend to people charged with summary offences.
What are the 3 rights of victims?
-right to give evidence using alternative arrangements
-right to be informed about proceedings
-right to be informed of the likely release date of the offender
What is the right to give evidence using alternative arrangements?, what is its purpose?
(Supported by the Criminal procedure act).The purpose of alternative arrangements: Intended to reduce trauma, distress and intimidation that a witness may feel when giving evidence.I.e in particular cases dealing with family violence and sexual assault.
Cases in which alternative arrangements of evidence can be given include
-Sexual offence
-Family violence
-Offences for obscene, indecent, threatening language or behaviour in public
-Offence for sexual exposure in public
Types of alternative arrangements
-witness may give evidence elsewhere from a courtroom by the means of a closed circuit television to enable communication between that place and a courtroom (evidence will be recorded)
-Screens may be used to remove the witness from the direct eyeline of the accused
-Support person may be chosen by the witness to be beside them while the witness is giving evidence so that they can provide emotional support
-Only certain persons( specified by the court) may be allowed by the court when the witness is giving evidence
-legal practitioners may be required not to be formally dressed in robes
-legal practitioners may be asked to be seated while asking the witness questions.
-Court may direct the use of alternative arrangments if a witness is a complainant in a sexual violence or family violence act.In such a case the court must direct the use of a closed circuit television or other facilites, this must occur unless the prosecution has applied for the complainant to give evidence in the courtroom and the complainant is consenting and understands the matter.
What is the right to being informed about proceedings?, what are its benefits?
Supported by the victim charters act), Victims are entitled to be informed at reasonable intervals about the progress of an investigation (unless it may jeopardise a case),victims should be informed about charges,hearing dates and times,outcomes,sentences and details of any appeal. They should also have access support services,possible compensation entitlements and the legal assistance available to persons adversely affected by crime.I
Once a prosecution has commenced the victims charter requires the prosecution to give the victim the following information:
-Details of the offences charged against the person
-If no offence is charged the reason why
-How the victim can find out the date and place of the hearing changes
-the outcome of the criminal proceedings including any sanctions and sentencing imposed
-details of any appeal
The victim must also be told they are entitled to appearing at any court hearings
These requirements acknowledge that a victim may wish to be informed about a criminal case that has affected them.
What is the right to being informed about the likely release date of the offender?
(supported by victims charters act).
Person who is a victim may apply to the victims register which is a register maintained by the state of Victoria set up to provide victims of violent crimes with relevant information about adult prisoners while they are in prison, this includes information about there possible release date.This means that if a prisoner is going on parole (supervised release from prison) a victim will be informed 14 days before there release.Other rights are also involved if a victim is on the victims register, this includes the right to know the length of the sentence,the right to be told if the prisoner escapes from prison,right to make a submission if the prisoner is perhaps getting released on parole.
What does the principle of fairness refer too?
(Impartial,open and participation):Processes should be impartial and open, allowing all people to participate in the legal system.fundamental right recognised by statue law such as the human rights charter, common law, international convenant on civil and political rights (1996) in which Australia is an international treaty signatory too.
Fairness ensures that:
-innocent people are not found guilty of a crime they didn’t commit
-Public confidence is maintained in our criminal justice system through features such as open and public hearings.
The principle of fairness incorporates 3 broad features
-Impartial processes:Courts and personnel, including judges,magistrates and jury members are independent and impartia ensuring no apprehanded bias, or discrimnation occurs. the outcome should be decided on facts and law not prejudice.Impartial processes also extend to the conduct and processes of police.
Apprehended bias:when a fair minded lay observer might reasonably believe that the person hearing or deciding a case (such as magistrate/judge) might not be impartial or act with bias).For example this can occur if the judge is family members with the accused.If there is apprehended bias it must be removed with the judge or magistrate removing themselves from the case or a jury member might be discharged.
-Open processes ;Vital as it allows the public to scrutinize the institutions such as the courts,police and government departments and people who administer the law, holding them accountable for their actions,decisions and practices.
By having hearings conducted in public and having court judgements made avaliable to the public ensures that court processes and deciisons are fair and accuratly reported allowing media,community and victims to attend, becoming informed about the processes of courts and ensuring justice is seen to be done.There are some exceptions to this in which for the protection of a witness, or perhaps if a child is involved courts may need to be closed to the media, or the public.
Participation:People have the right to participate in the criminal justice system.Key characteristics of participation include;
-Oppurtunity to know the case put against them (know the facts, disclose all relevant evidence)
-Oppurtunity to prepare a defence; accused must have adequete time and facilities to prepare a defence, and they should have the opportunity to present their case in court,includes the right to call their own witnesses in support of the case
-Use of a lawyer:Accused should be able to defende themselves through legal representation.If eligible (through legal aid)
-use of an interpreter:access to a free interpreter if they cannot use or speak english..
-tried without reasonable delay
-allowing some victims to give evidence via alternative arrangements
-The use of victim impact statements
-Providing an oppurtunity to give their view:Victims can give their view to the prosecution, for example during plea negotiations.
-The right to not testify against oneself (through the right to keep silent)
-The presumption of innocence
what does the principle of equality refer too?
(Substantive and formal equality): All people should be able to engage with the legal system without disparity or disadvantage, all individuals should be treated the same way or measures should be taken to ensure that no individual is at disadvantage.
Human rights charter protects equality by saying that
-Every person is equal before the law
-Every person is entitled to equal protection of the law without discrimination
-Every person has the right to equal and effective protection without discrimination
-same treatment:People should be treated in the same way, known as “formal equality”, all people should be given the same level of support regardless of gender,race,sexualty etc,This idea of equality uses a “one size fits all” approach, and fails to take in account the inherit disadvantages that some individuals face, and therefore the disproportionate benefits/effects of such support.
-different treatment(substansive equality):If people getting treated the same causes disparity or disadvantage then systems should be put in place to allow people to participate without the disparity or disadvantage.”focus or equity rather than equality”.Also known as “substansive equality”; meaning that sometimes a special approach rather than a one size fits all approach should be taken.
Examples of measures:
-interpreters
-Providing information in a different way
-Changes to court processes, such as providing it in written form
-Different form of oath or affirmation
-changes for the purposes of cultural difference
-Breaks and adjourments
-translater/asl interpreter
what does the principle of access mean?
(Engagement, and informed basis):All people should be able to engage with the justice system and its processes on an informed basis.
Enagagement(the means and ability to be able to use and participate in the system);
-Physical access; people should be able to physically access courts,legal services or legal representation.
-Technological access:if virtual or online methods are used to provide services or even conduct court hearings,then people should be able to engage in those methods.
-Financial access:people should not be prevented from defending their case and using the criminal justice system because they do not have the financial means to do so
-No delays
Informed basis (means people should be able to understand their legal rights and the processes involved in their case, obtain or be provided with enough information to make reasoned and sensible decisions, such as the decision to plead guilty or not guilty).
The following may make help a person be more informed;
-Education
-information; have access to information about legal processes and their rights
-legal and support services
-Legal representation
what is victorian legal aid?
Victorian legal aid is a government agency that provides free legal information to the community and legal advice and legal representation for people who cannot afford a lawyer.It prioritises people who cannot afford a lawyer and need it the most.
what kind of assistance can VLA provide?,
-Provide free legal information(in a range of languages);free on their website accessible to all accused
-Free legal advice (including help before court service); can offer legal advice over the phone or in person.Access to legal advice will go out to those who really need it.Help before court service is only avaliable to people charged with offences in the magistrate court or for those who need it most.Not avaliable for indictable offences in higher courts or committal proceedings.
-Duty lawyer services who can represent an accused in court.Duty lawyers can give information,represrnt an accused in court and offer advice.Duty lawyers are only avaliable in the magistrate court, they are not avaliable for indictable offences or committal proceedings.
what requirements do VLA have in order for an accused to get assistance?
They can provide legal advice to anyone who satisfies the income test (the income test:Income test for people who need advice of representation on a specific day.An accused meets the income test if they produce a current centrelink benefit card, or pensioner concession card to the duty lawyer.if they do not have one of these they may still pass the income test and if they sign a declaration that shows they have a limited outcome.)and are facing a straightforward charge, anyone in custody is first priority.
