unit 3 aos 1 Flashcards
Purposes of the criminal justice system
- To determine whether an accused is guilty
- To impose a sanction when an accused is found guilty
The parties is a criminal case
The prosecution and the accused
Summary offences
- minor criminal offences
- heard in the Magistrates’ court by a Magistrate
- no jury
- called a final hearing
- contained in the Summary Offences Act
- e.g. disorderly conduct, drinking offences, minor assaults
Indictable offences
- serious criminal offences
- heard in the higher courts by a judge
- if the accused pleads not guilty, there is a jury
- called a trial
- contained in the Crimes Act
- e.g. homicide, fraud, drug trafficking, sexual offences
Indictable offences heard summarily
- indictable offences heard in the Magistrates’ Court
- attractive because it is cheaper and quicker for the accused, and the maximum penalty is 2 years for a single offence and 5 years for multiple offences
The burden of proof
- the obligation to prove the facts of the case
- the burden of proof is on the party who initiates the case (prosecution)
- the burden of proof can be reversed in some cases (e.g. when the accused argues not guilty due to mental impairment)
Standard of proof
- the degree/extent that a case needs to be proved
- beyond reasonable doubt in criminal cases
Presumption of innocence
- the right of an accused person to be assumed not guilty unless proven otherwise
- protected by common law, the Charter of Human Rights and Responsibilities Act, and the burden of proof
- the right to silence, prior convictions not being revealed until after sentencing, the right to appeal protect this right
The rights of the accused
- the right to be tried without reasonable delay
- the right to silence
- the right to trial by jury
The right to be tried without unreasonable delay
- the accused is entitled to have their charges heard in a timely manner
- delays should only occur if reasonable (e.g. case complexity)
- protected by the Human Rights Charter
The right to silence
- an accused has the right to refuse to answer any questions during the investigation of a crime or give evidence in a criminal trial
- must give name and address when police ask
- protected by common law and statute law
The right to trial by jury
- a person charged with an indictable offence is entitled to have their guilt decided by a jury of their peers
- protected by Australian Constitution and statute law
Rights of the victim
- the right to give evidence using alternative arrangements
- the right to be informed about the proceedings
- the right to be informed of the likely release date of the accused
Fairness
A principle of justice which means all people can participate in the justice system, and its processes should be impartial and open.
Equality
A principle of justice which means all people engaging with the justice system and its processes should be treated in the same way; if the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow everyone to engage with the justice system without disparity or disadvantage.
Access
A principle of justice which means that all people should be able to engage with the justice system and its processes on an informed basis; that is, they should have the means and ability to be able to use and participate in the legal system.
Features of fairness
Impartial processes, open processes, and participation
Examples of fairness
- the judge, jury or court personnel cannot have any apprehended bias
- justice is ‘seen to be done’
- the accused knows the case against them and can prepare a defense
- the victims can give evidence using alternative arrangements
Features of equality
Same treatment, different treatment
Examples of equality
- interpreters
- change in court processes
- different forms of oath
Features of access
Engagement, informed basis
Victorian Legal Aid
- a gov’t agency that provides free legal info to the community and free legal advice and representation to those who can’t afford it
Types of assistance from VLA
free legal information
- available to all people
free legal advice
- availability depends on the accused’s income
duty lawyer
- a lawyer who is in court on a particular day
- only available in the Magistrates’ Court and Children’s Court (not for indictable offences)
- available to people after income test
grants of legal assistance
- for people who cannot afford a lawyer
- means test
Objectives of VLA
- to provide legal aid in a effective, economic and efficient manner
- to make legal aid available at a reasonable cost
- to provide the community with improved access to justice
Generalist CLCs
Provides legal services to people within a particular local geographical area
Specialist CLCs
Provides legal services to a particular group of people or for a specific area of law
Community Legal Centres
- provides free legal services (advice, info, and representation) to people who cannot access legal services otherwise
- provides legal education to community
- advocates for changes to the justice system
Types of assistance provided by CLCs
basic legal information
- online/physical resources
initial legal advice
- can provide legal advice on preliminary matters
- can assist with writing letters/completing forms
legal casework
- some CLCs can provide representation in criminal matters (not applicable for indictable offences)
Plea negotiations
Pre trial discussions between the prosecution and the accused that aim to resolve the case
Potential outcomes from a plea negotiation
- the accused pleads guilty, but to fewer charges
- the accused pleads guilty, but the facts of the charge are agreed on
- the accused pleads guilty to a lesser charge
Purpose of plea negotiations
- to ensure certainty of the outcome of a criminal case
- to save the court and prosecution’s costs, time and resources by avoiding a trial/hearing
- to achieve a resolution without furthering the stress, trauma and inconvenience experienced by vicitims
Appropriateness of plea negotiations
- the willingness of the accused to cooperate
- the strength of the prosecution’s case
- whether is accused is represented
- whether the witnesses are able to give evidence
- the view of the victim
- the time and cost associated with a trial
Reasons for court hierachy
Appeals, precedents, efficiency, specialisation
Grounds for appeal
- appealing on a question of law
- appealing a conviction
- appealing the severity or leniency of a sanction
