UNIT 3 AOS 1 - FINAL Flashcards
The distinction between summary offences and indictable offences
A summary offence is a minor criminal offence heard in the Magistrate’s court, whereas an indictable offence is a more serious offence, heard in the County and Supreme Court of Victoria. The difference between the two is the severity of the sanctions they attract and a jury is only used in the trials for indictable offences.
Key principles of the criminal justice system
Burden of proof, standard of proof, presumption of innocence
Burden of proof:
Party which has the obligation to prove their assertion in court.
burden of proof = prosecution, the party which initiates the criminal proceedings.
Standard of proof:
Degree/strength of the evidence required by the party bringing an action to prove their case.
beyond reasonable doubt, the individual should not have any rational doubt as to the guilt of the accused after assessing the evidence.
Presumption of Innocence:
Notion that a person accused of a criminal offence is considered to be not guilty of said offence, until they are proven guilty beyond reasonable doubt in the court of law.
The rights of an accused
The right to be tried without unreasonable delay, right to silence, right to trial by jury
The right to be tried without unreasonable delay:
To ensure both prosecution and defence have sufficient time to gather evidence and prepare cases for court.
- Accused is not remanded for long
Right to silence:
Have the right to refuse to answer questions by police and to refuse to give evidence during a trial; judges cannot draw “adverse inferences” if they use the right to silence.
(Protection against self-incrimination)
Right to trial by jury
Ensures that all accused persons have the opportunity to have their case heard unbiasedly by surrounding members of the Victorian community.
The rights of victims
Right to give evidence using alternative arrangements: Use of special provisions in place to enable witnesses to give evidence
The principles of justice during a criminal case
Fairness, equality, access
Justice:
The maintenance of what is just or right by the exercise of authority of power
FAIRNESS:
“All people can participate in the justice system, and its processes should be impartial and open”
To ensure innocent people are not found guilty of crimes they did not commit
Impartial processes:
Ensures court personnel are independent and impartial
Need to ensure there is no apprehended bias which is a situation where a fair-minded person, with knowledge of the key objective facts, might reasonably believe that a judge, magistrate or jury member, might not be impartial when deciding the case
Open processes:
Those who administer justice to be held accountable for their actions, decisions, etc. (open to public)
EQUALITY:
“All people be treated equally before the law, regardless of factors such as race, gender, disability, etc. If processes creates disparity, measures can be implemented to ensure all can participate in the justice system without disadvantage (substantive equality)
- Interpreters
- Changes for cultural differences (Koori Court, eye contact prohibited)
ACCESS:
“All people regardless of socio-economic status understand their legal rights, and requires that all people understand and have the ability to pursue their case.
The role of Victoria Legal Aid (VLA) and Victorian community legal centres (CLC) in assisting an accused and victims of crime
independent statutory authority set up to provide legal aid in the most effective, economic manner.
STRENGTHS OF VLA
Free legal information on VLA’s website (court processes, accused/victim’s rights, legal principles)
Free legal assistance (duty lawyers, legal assistance) to ELIGIBLE people, prioritize the most vulnerable
Interpreters are provided (30+ languages)
WEAKNESS OF VLA
May not be enough information
Does not have unlimited resources, must apply to criteria
Ability for VLA to meet demands for services, (rely on funding)
COMMUNITY LEGAL CENTRES (CLC):
Generalist CLC’s: broad legal services for people in a particular geographical area
Specialist CLC’s: focusses on a particular group of people/area of law
Role of CLC’s:
Provide accused with legal information, legal advice, ongoing assistance in a case to understand and be aware of rights.
Types of assistance for accused + victims people: CLC
Basic legal information
Legal advice and assistance
Duty lawyers (victims)
STRENGTHS OF CLCs
Free legal information (help educate the community about court processes/rights) on CLC’s website (different languages)
WEAKNESSES OF CLCs
Insufficient funding, do not assist with indictable offences, may not have enough staff to meet needs
Plea negotiations: characteristics
- Between prosecutor and accused about charges
- Result: in agreement between two parties if pleading guilty
STRENGTHS OF PLEA NEGOTIATIONS:
Saves trauma and inconvenience of victims and their families
Certainty of outcome for parties
WEAKNESSES OF PLEA NEGOTIATIONS:
Can be held privately/disclosed
Prosecutor seen as avoiding proving the case beyond reasonable doubt
Self-represented party may feel pressure into accepting deal
THE VICTORIAN COURT HIERARCHY: Jurisdictions
Original jurisdiction: power of a court to hear the case at first instance
Appellate jurisdiction: power of a court to hear a case in which the decision is being reviewed or challenged on a particular ground.
THE VICTORIAN COURT HIERARCHY:
HIGH COURT
SUPREME COURT
(COURT OF APPEAL)
SUPREME COURT
(TRIAL DIVISION)
COUNTY COURT
MAGISTRATE’S COURT
SPECIALISATION: Supreme Court (Court of Appeal):
determining criminal appeals in indictable offences and has expertise in sentencing principles
Supreme Court (Trial Division):
hears the most serious indictable offences and has developed its own specialization in those types of crimes and the elements of each crime, as well as the trial processes and giving evidence
County Court:
hearing particular types of indictable offences (all those except murder and manslaughter)
Magistrate’s Court:
familiar with all summary offences that need to be dealt with efficiently.
deal with bail applications and committal hearings.
APPEALS:
A party who is dissatisfied with a decision in a criminal case can take the matter to a higher court to challenge it.
Appellant:
party who appeals
Respondent:
party who is appealed against
Grounds for appealing:
Appealing a conviction, severity of sentence, if law is not followed
ROLES OF KEY PERSONNEL (JUDGE + MAGISTRATE)
Manage trial/hearing
Listens to facts of case presented
Ensures the correct court procedure is followed so both parties can present their case
Decide outcome of the case
Magistrate:
determines guilt AND sentences offender
Judge:
gives direction to jury to ensure fairness + understanding
ROLES OF KEY PERSONNEL (THE JURY)
Listen and remember evidence
Can take part in deliberations in the jury room and form opinion beyond reasonable doubt
Impartial, unbiased
Must not undertake any investigation of their own (forms bias)
Deliver verdict (determine guilt)
ROLE OF KEY PERSONNEL (PROSECUTION)
Disclose information to accused (informed on evidence used against them)
Present evidence that supports the case: calling + questioning witnesses
Cross-examine any witnesses called by accused
ROLE OF KEY PERSONNEL (THE ACCUSED)
Participate in trial/hearing
Make submissions about sentencing
Relies on mitigating factors + information for lighter sentence
Why are legal practitioners needed?
Access to legal advice, to upholding the rule of law
Ensure no mistakes when determining guilt
Self-representation = doesn’t have objectivity to make right decisions
STRENGTHS OF LEGAL PRACTITIONERS:
Experts, help accused in navigating the criminal justice system
Make decisions in criminal cases
Avoid delays
WEAKNESSES OF LEGAL PRACTITIONERS:
Not all equal, less experienced
Not able to afford legal representation
May not assist an accused (cannot understand English, etc.)
Measures to address costs:
Provision of free legal aid = (VLA, CLC’s)
Committal proceedings
Plea negotiations
Court delays:
Gathering evidence, locating and interviewing witnesses, determining facts, etc.
Measures to address delays:
Plea negotiations
Digital technology to allow for remote hearings
Difficulties faced by First Nations Peoples:
Language barriers
Cultural taboos
Lack of understanding of court procedures
Measures to address cultural differences:
Implementing Koori Court
Provision of free interpreters to accused
Information from the courts, VLA, CLC’s in different languages
Rehabilitation:
reform offender in order to prevent them from committing offences in the future
Address underlying causes of offending + treat offenders based on these causes
Punishment:
penalize offender and show society criminal behaviour will not be tolerated
Deterrence:
(general + specific)
discourage offender and others in community from committing similar offences
General deterrence:
Discourage/deter others from committing offences because they see the consequences of committing the crime
Specific deterrence:
Court seeks to discourage a particular offender from engaging in criminal activity in the future
Denunciation:
demonstrate community’s disapproval of the offenders actions
Protection:
safeguard the community from an offender by preventing them from committing a further offence
Ensures safety in community
FINES
Amount of money ordered by court to be paid by offender to state of Victoria
Determining the amount of fine factors:
Financial circumstances of offender
Loss, destruction or damage of property
Sentencing purposes of fines:
Punishment
Deterrence
Denunciation
COMMUNITY CORRECTIONS ORDER (CCO):
flexible, non-custodial sanction where offender serves in the community, with conditions attached to the order
Conditions attached to CCO’s
Must report to specified community corrections center within 2 working days of order
Must notify officer of change of address or employment within 2 working days of change
Must not leave Victoria without permission
IMPRISONMENT:
Removing offender from society for a period of time by being placed in prison
“Sanction of last resort”
Aggravating factors:
Circumstances about offender / offence tend to increase the offenders culpability + the sentence they will receive
Mitigating factors:
Circumstances a court should consider when determining the appropriate sentence that may decrease the offenders culpability, leading to sentence reduction
Guilty pleas:
admit that you committed the act charged and that the act is prohibited by law, and that you have no defense or excuse for your act
Victim impact statements:
Contains particulars of any injury, loss or damage suffered by victim as result of offence
Factors considered in sentencing:
aggravating, mitigating, guilty pleas, victim impact statements
Open justice:
Being aware of what is occurring in the justice system
Types of alternative arrangements:
Evidence from a place other than courtroom (CCTV, etc.)
Screens to remove line of vision to witness (safety reasons, etc.)
Purpose of alternative arrangements:
Reduce trauma, distress.
Reduce the likelihood of secondary trauma
Right to be informed about the proceedings:
Victims Charter recognizes that people adversely affected by crime should get certain information about the proceedings from the police, the DPP, and Victims of Crime Commission.
How the victim can find the date, time, place or hearing of charge/s
Outcome of criminal proceeding
Right to be informed of the likely release date of offender:
A person must be on the Victims Register to receive information pertaining to the release on the prisoner, including on parole, at least 14 days before release.
Role of VLA:
Aims for a fair, just & inclusive society.
Provides free legal information to the community (if eligible). Receives some funding from the Commonwealth + Victorian Government
Objectives of VLA:
Provide legal aid in the most effective, economic and efficient manner
Manages resources to make legal aid available at reasonable cost to community
Types of assistance for accused + victims of crime:
- Free legal information
- Free legal advice
- Duty lawyer services
Plea agreements:
- Accused pleads guilty to fewer/lesser sentence charges
Purpose of plea negotiations:
- Ensure certainty in outcome of a criminal case
- Save on costs, time, trauma and resources
Appropriateness of plea negotiations:
- If accused is willing to cooperate in investigation of other crimes
- Strength of evidence
