Unit 3 AOS 1 Part1 Flashcards
Summary Offence
A summary offence is a minor criminal offence heard before a magistrate alone in the Magistrates’ Court.
Examples of summary offences
- Drink driving
- Offensive behavior
- Minor drug matters
Indictable Offence
An indictable offence is a serious offence, one which comes before County Court or Supreme Court (Trial Division).
Examples of indictable offences
- Murder
- Manslaughter
- Armed Robbery
Committal Proceeding
Heard in the MC, is a pretrial procedure to determine whether the prosecution has evidence of sufficient weight to gain a conviction at trial.
Indictable Offences heard Summarily
Some indictable offences can be heard before a magistrate alone. The accused must consent to this process.
Benefits to Indictable offences heard summarily
- It is quicker
- It is cheaper
- The maximum sanction that can be imposed is 2 years imprisonment.
The Burden of Proof
(Criminal)
- Refers to the responsibility of proving the guilt of the accused in a court of law.
- In a criminal case this rests with the
prosecution. - In a civil case this rests with the plaintiff.
- It is only fair that the party initiating the case must prove guilt.
Burden of Proof (Summary Offences)
With summary offences, the burden of proof rests with a “police prosecutor” (A senior police officer presenting the case on behalf of the state in the MC).
Burden of Proof (Indictable Offences)
With indictable offences, the burden of proof rests with the “Director of Public Prosecutions” (The prosecuting authority within the state of Victoria).
Standard of Proof
(Criminal)
- Refers to the extent to which the guilt of the accused must be established in court.
- In a criminal matter it is beyond reasonable doubt.
- Is extremely high and enormously demanding.
Presumption of Innocence
- Addresses in common law, Victorian law and international law.
- All accused of a criminal offence are to be presumed innocent until proven guilty
- Upholds fairness
The rights of the accused
Within Victoria’s criminal justice system, the accused possesses a number of important rights:
- The right to be tried without unreasonable delay
- The right to silence
- The right to a jury
These rights provide fair and equal treatment of the accused.
The right to be tried without unreasonable delay
- Outlined in Section 25 of the Victorian Charter of Rights and Responsibilities.
- Time will be needed by investigatory bodies.
- Time required to thoroughly prepare a case for court.
- Every effort must be made to prevent undue delays.
The right to silence
- An individual does not need to respond to questions put to them by the police.
- Accused cannot be compelled to answer questions at trial.
- No negative inferences can be drawn from an accused who chooses to maintain silence.
The right to a jury
- If the accused’s trial is to unfold in the CC or SC (TD) there must be a jury.
- Jury will determine the verdict.
- A jury assists in fairness as an independent, impartial, third party.
Rights of the victim
- Right to give evidence using alternative arrangements
- Right to be informed of proceedings
- Right to be informed of likely release date
The right to give evidence using alternative arrangements
- Victim will need to provide account of events on different occasions, providing evidence can be traumatic.
- Provisions can be put in place for the witness.
- Victims who may need special provisions include:
- Children
- Mentally Impaired
- Victim of violent or
sexual offences
Alternative Arrangements for victims
- Giving evidence from behind a screen
- Support person
- CCTV
- Closed Court
The right to be informed of proceedings
- “Victims Charter” outlines this particular right.
- Police keep the victim informed of proceedings.
- Information will not be passed on if it could jeopardize the investigation.
- Prosecuting bodies will inform the victim of charges laid, date and place of trial, outcome.
Right to be informed of likely release date
- A victim of a violent crime placed on “Victims Register”.
- Victim can access certain details, such as length of sentence.
- Victim can also be informed of when offender will be released from imprisonment or if eligible for parole.
- If eligible for parole victim can make a submission to the Adult Parole Board to outline impact of release on them.
The Principles of Justice
Fairness, Equality, Access
Fairness
- Parties being treated impartially.
- Parties being able to participate in CJS.
- The workings of the CJS are to be open.
Processes, Procedures, and Principles: Fairness
- Independent, impartial judge or magistrate.
- Independent, impartial jury.
- Rights of accused and victim.
- Aggravating and Mitigating factors.
- Strict rules of evidence, procedure.
Equality
- Involves both parties being treated similarly.
- Both parties of same status.
- If results in disadvantage, measures must be put in place to address this.
Processes, Procedures, and Principles: Equality
- Each party has the opportunity to present it’s case.
- Key personnel; judge, jury.
- Interpreters.
- Swear an oath on a holy book of choice.
Access
- Involves both parties being informed and being able to engage in the CJS.
- Parties need to be able to use the system to resolve disputes.
Institutions, processes, and services: Access
- VLA and CLCs.
- Court Hierarchy.
- Committal Proceedings in MC.
- Plea negotiations.
Victoria Legal Aid
- When an individual is charged legal assistance will be needed.
- Victim of a crime might need legal assistance.
- Government funded body.
- Provided legal information and education.
- VLA will also provide funding for legal representation in some cases.
VLA: Service for Accused
- 15 VLA offices exist throughout Vic for in-person appointments.
- Telephone Hotline.
- Comprehensive Website.
- “Help Before Court” service.
- Duty Lawyers, represent those who show up to court unrepresented.
- Funding for legal rep for those eligible, VLA will consider financial situation. (income, assets)
VLA: Services for Victim
- How to navigate CJS inc. rights and how to engage in processes.
- How to obtain a protection order.
- How to obtain financial assistance and compensation (VOCAT)
VOCAT
- Victims of Crime Assistance Tribunal.
- Duty lawyers and funding for those using VOCAT.
“Help Before Court”
- 14+ days before appearance in MC or Children’s Court can contact this service for assistance.
Community Legal Centers
- Exist throughout Victoria to provide free legal information and advice.
- CLCs specifically focus on those who are disadvantaged or who have special needs.
- Throughout Victoria there are 24 general CLCs.
- In addition there are a number of specialist CLCs.
CLCs: Services for accused
- Provision of information.
- Preliminary legal advice and assistance for an accused awaiting court.
- Ongoing legal assistance and rep - must be eligible.
CLCs: Services for the victims
- How to navigate CJS.
- How to apply for intervention orders.
- How to seek financial assistance and compensation.
- YouthLaw: Assistance to young people under the age of 25.
Plea Negotiations
- Can unfold prior to criminal action.
- Involve both pros and accused.
- Attempt to avoid hearing or trial.
- Attempt to gain guilty plea.
- Pros will provide accused with an incentive:
- A reduction in
the seriousness of
charges - A reduction in the
number of charges
faced
- A reduction in
Purposes of Plea Negotiations
- Encourage a guilty plea from accused.
- Trial to be avoided.
- Time, money and resources are saved.
- Court will be freed up for further contested matters.
- Beneficial to pros if concerned about strength of evidence.
- Result in conviction.
- Stress, trauma and inconvenience avoided.
Appropriateness of Plea Negotiations
- Supporters of p/n refer to efficiency of CJS being enhanced. Appropriate if their are concerns about pros case, conviction guaranteed.
- Critics suggest it may be a soft outcome, also accused might plead guilt to finish matter.
