unit 3 aos 1 legal SAC Flashcards
what are summary offences
summary offences are minor offences that are generally heard in the magistrates court
what are indictable offences
indictable offences are serious offences generally heard before a judge and jury in the county court or supreme court of victoria
what are indictable offences heard summarily
some indictable offences are heard as if it were a summary offence, meaning they have no jury and are heard in magistrates court if it is deemed appropriate
why would an accused want their indictable offence heard summarily
it is cheaper, faster, more efficient and lower sections
why wouldn’t an accused want their indictable offence heard summarily
they may want judge expertise, jury sympathy and if the case is more complex
what is the burden of proof
the burden of proof refers to which party had the onus (responsiblity) to prove the factors of the case
burden of proof (criminal)
prosecution who must prove every element of the offence charged beyond reasonable doubt
why does the bop rest on the prosecution
to uphold the presumption of innocence
prosecution has more resources
if it was on the accused it would assume guilt
consistent with society’s values of fairness
prosecution initiated the case
reverse burden of proof
when the burden of proof is occasionally revered onto the accused for example drug possession.
standard of proof
refers to the strength of evidence you need to prove the case, which is beyond reasonable doubt in criminal law
what does beyond reasonable doubt mean
- no reasonable doubt presented from the case
- it isn’t enough to be probably guilty or very likely
- sits in between very likely and certain
- fanciful and unrealistic doubts are not reasonable
what is the presumption of innocence
legal principle that states that a person accused of committing a crime is entitled to be considered not guilty until proven guilty according to law
why does the poi exist
- as a society we believe it is better to let a guilty man walk free then an innocent wrongly convicted
- resource imbalance
- principle of fair trial
how is the poi upheld
prosecution has the burden
standard of proof being high
recognised as a right of an accused in the Charter
releasing accused on bail
right to silence
prior convictions are usually not presented
how is the poi hindered
holding accused on remand
reverse burden of proof
when prior evidence is used
plea negotiation process
difficulty in being released on bail
what are the 3 studied rights of the accused
- right to trial without unreasonable delay
- right to silence
- right to trial by jury
what is the right to trial without unreasonable delay
the accused is entitled to have their charged heard in a timely manner, and if any delays occur they must be reasonable, found in vic charter of rights and responsibilities
sexual offence: 3 months
other crimes: 12 months
depends on complexity of the case
what is the right to silence
the protections given to the accused not to say anything or do anything including refusing to answer police other than name and address, as well as refusing to give evidence. found in common law and statute law (evidence act)
no adverse differences can be drawn from the fact that the person did not answer any questions or give any evidence
what is the right to trial by jury
this right entitled an accused to have their peers within the community decide whether they are guilty if it is an indictable offence, found in the victorian juries act and the constitution.
jury allows for legal; participation in the the system
what is the right to give evidence using alternative arrangements
they have alternative arrangements to give evidence for citrims who are also witnesses. these arrangements can be made for certain types of offences like commonly secual offences where they may want to give evidence in a separate room, support person or a dog or a screen to block the accused from their view
found in criminal procedures act
what are the three studied rights of victims
- the right to give evidence using alternative arrangements
- the right to be informed about proceedings
- the right to be informed about the likely release date of the offender
what is the right to be informed about crIminal proceedings
the accused has the right to be given information about what is going on with criminal proceedings, given to anyone who is a victim which is the broadest category
it must happen during police investigation at reasonable intervals and once the prosecution has commenced the dpp must give the victim information. found in victims charter
what is the right to be informed about the likely release date of the offender
victims are allowed to reserve certain information about an offender who has been imprisoned, available to victims on the victims register for crimes such as rape or sexual offence, aggravated assault and child stealing, must be provided 14 days before release and is found in vic charter and corrections act
what is a victim?
people that have suffered as a result of a crime, including person suffered injury directly, family member of the death or family or someone with mental impairment due to the crime
principle of fairness
all people can participate in the justice system and its processes are impartial and open
principle of equality
all people engaging with the justice system and its processes should be treated the same way. if same treatment causes disparity or disadvantage then adequate measures should be implemented to allow everyone to engage in the justice system without disparty or disadvantage
principle of access
all people should be able to engage with the justice system and its processes on an informed bias
sections of fairness
participation - opportunity to participate
open processes - helps ensure justice system can be scrutinised and held accountable by public
impartial processes - court personnel are independent, showing no bias, case must be decided on facts and law
sections of equality
same treatment - formal equality, same levels of support, same procedures
adequate measures - treating people the same can cause disparity, substantive equality meaning special measures
sections of access
engagement- ability to use and participate in the justice system
informed bias - understanding legal rights and processes
what is victorian legal aid?
funded by gov, independent body, prioritises people who need help the most clientele including everyone with diversity or disadvantages
what are the four roles of VLA
- provide free general legal information
- free initial legal advice
- duty lawyer service
- grant of legal assistance
provide free general legal information (VLA)
- available in different languages
- available in person brochures, online
- about how court processes work
- available to all victims and accused
free initial legal advice (VLA)
- available in person, over call, vid conference
accused with low income: advise related to elements of the charge and processes relavent to the court
all victims: only relates to how to make an application for financial assistance of compensation from accused
provide a duty lawyer service (VLA)
- an accessible lawyer at magistrates on duty to help people who have a hearing on the day
accused who have done an income test: available at magistrates court for summ + ind. heard summarily and children’s court
victims that are prioritised: available at mag when seeking an interventions order
provide grant of legal assistance (VLA)
- asses to a lawyer who will run the case including preparing documents + rep in court
- accused that satisfy the means test which takes into account assets: both indictable and summary offences
- victims in limited matters with strict guidelines: financial assistance and intervention order
what are victorian community legal centres
independent comm. organisations providing legal services to those who need it the most, clc are all seperate organisations and facilities and are funded by gov as well as privately
specialist clc - particular group depending on location or area of law
general clc - broad legal services
four roles of CLC
- provide general information
- provide free initial legal advice
- free duty lawyer service
- ongoing legal assistance
provide general legal information (CLC)
- mostly available online and often in different languages depending on the CLC
- special CLC’s with expertise (youth law)
- available to all accused and victims for free
providing free initial legal advise (CLC)
- available in person, video conference or over phone
LEGIBILITY DEPENDS ON CLC
accused: can also help with writing short legal forms and letters
victims: can help with grant of assistance from VLA
provide free duty lawyer service (CLC)
- local mag court (some)
accused: DEPENDS ON CLC FOR REQUIREMENTS
victims: mostly depends on clc but in relation to intervention order hearings
ongoing legal assistance (CLC)
- having a lawyer rep u in court
accused: most offer for summary most don’t for indictable
victims: some for those applying intervention order
mostly as strict as VLA
