unit 3 aos 1 part b legal studies Flashcards
what are the roles of the magistrate or judge
- act impartially when making decesions
- manage hearing or trial
- magistrate: decides verdict
- sentencing an offender
acting impartially when making decesions
- unbiased when making decisions
- must be no apprehension that they are unbias
- if there is any, they should be removed from case
not withstanding: sometimes bias can happen which means fairness not achieved
manage hearing or trial
- ensuring correct court procedures to both parties
- controlling events/ witness
- whether evidence is permissible
- adjust trial process based on disparity or disadvantage
notwithstanding this, often comments are made towards one sides counsel meaning equality is not achieved
magistrate decides the verdict
- deciding whether the accused is guilty based on facts and law beyond reasonable doubt
one limitation is there is no public participation hindering access
sentence an offender
- hear from both parties and hear from victims
- allow the parties to submit appropriate submission about offending and the sentencing (including victims through victim impact statements)
notwithstanding this there can be risks that they have subconscious biases hindering fairness
roles of the jury
- be objective in delivering verdict
- listen to and remember evidence
- understanding judges directions and summing up
be objective in delivering verdict
- unbiased and bring an open mind
- putting aside prejudice
notwithstanding this jury members may have unconscious biases or prejudices hindering fairness
listen to and remember evidence
- makes sense of all evidence
- must not undertake any investigation research or inquiries prior or during the case
one limitation is that jurors may struggle to recall all the evidence accurately, especially in long or complex trials hindering fairness
understanding judges directions + summing up
- when instructions are given to jury about points of law
- asking for explanations on things they don’t understanding
notwithstanding this jury trials may result in further delays as rules, evidence and processes need to be explained to the jury hindering access
role of the parties
- prosecution has to disclose information about accused
- participate in hearing and trial
- make submissions about sentencing
prosecution disclosing information about accused
- disclose evidence, name, statements and relavent conviction about prosecutions witness
notwithstanding this sometimes police wait to see what the defence requests rather than providing disclosure upfront/proactively as required which hinders fairness
participate in hearing and trial
- present opening address
- cross examining witness
- present closing address
one limitation is the access for self-represented accused, as they may not be able to fully understand and participate in the hearing or trial hindering access
make submission about sentencing
- plea hearing at which the parties can make submissions about sentencing, the offender is also entitled to make submissions about sentencing.
- accused will try to obtain the least possible sentence available
notwithstanding this based on objective legal principles rather than the persuasive ability or strategic arguments of either party hindering fairness
why is a legal practitioner needed for an accused
- to understand complex legal process/ terminology which most accused are unfamiliar with
- to give an accused to opportunity to test the prosecutions evidence
- to ensure closed processes (plea.negs) are done fairly and without pressure to plead guilty
- for accused who may find it difficult to objectively asses the strength of their case and risk of going to trial
- for traumatic or difficult case (family violence) avoids the accused directly questioning victim
- magistrate or judge can assist self represented accused but cannot extend to advocating or giving specific advice
to understand complex legal process/ terminology which most accused are unfamiliar with
eg. navigating process such a plea neags.
could help them engage on an informed bias (access)
if not, it affects the level playing field with prosecution (equality)
to give an accused to opportunity to test the prosecutions evidence
eg. provide legal knowledge about how to test evidence under regulations in place like leading questions
helps them have an opportunity against prosecution
if not, affects their opportunity against prosecution in terms of strength of evidence (access)
to ensure closed processes (plea.negs) are done fairly and without pressure to plead guilty
eg. during plea neags
helps ensure that no unfair tactics are being used
if not, accused may be coerced into pleading guilty when they don’t have to, uneven playing field (equality)
for accused who may find it difficult to objectively asses the strength of their case and risk of going to trial
eg. thinking they can win
helps to stand back and assess the risks and facts of the case objectively
if not, accused may make an unbeneficial decision based on feelings (access)
for traumatic or difficult case, avoids the accused directly questioning victim
eg. sexual family offences
helps ensure victim is provided with adequate measure so that no disadvantage or trauma is placed.
if not, may cause re traumatisation, disadvantage on the prosecution
magistrate or judge can assist self represented accused but cannot extend to advocating or giving specific advice
exactly what is it, the legal prac can do more things for the accused
COST (legal aid)
–> VLA and CLC are able to provide assistance for accused who cannot afford legal rep.
–> courts can order them (VLA) to provide sometimes
there is a lack of funding to legal aid, which tightens the criteria for eligibility
missing middle - accused who cannot afford legal rep but don’t qualify for legal aid, meaning more self represented accused are increasing
COST (legal rep)
–> layers are very expensive and significant for an accused since they are against prosecution
–> solicitor charges by hour ($200 - 800)
–> barrister charges by the day ($2,000 - 10,000)
court cost and distributions: filling fees, engaging expert witness
more expensive higher the court
TIME (court delays and backlogs)
court delays are caused by
- parties need time to gather evidence
- committal proceedings
- self represented parties
- COVID
CULTURAL DIFFERENCES (first nations)
–> one example
reasons include socioeconomic and historical
eg. direct eye contact is seen as disrespectful to some first nations people they avoid it by looking down, it may seem as if they are uninterested, unreliable when giving evidence or interacting with police
4 conditions to koori court, which is a division of mag + county courts that is a sentencing for some first nations offenders (sentencing conversation)
- must be first nations
- within jurisdiction of relevant case
- must consent
- must plead guilty
roundtable discussion - informal and cultural sensitive
presence of first nation elder provides info about cultural
speak in plain english
