Unit 3 AOS 1 : The victorian criminal justice system Flashcards
1
Q
Summary offences (kk1)
A
- Minor crimes that are committed by the accused, listed in the Summary Offences Act 1966 (Vic), and are always heard in the Magistrates Court
- E.g Drunk driving, jaywalking, minor assault, minor drug possession
- Sanctions adjourned undertaking- w/ or w/out recorded conviction, fines, CCO, imprisonment (max 5 years)
- No committal hearings, most are granted bail for summary offences
2
Q
Indictable offences (kk1)
A
- Serious crimes that are found w/in the Crimes Act 1958 (Vic), and are heard in the county or supreme court
- E.g murder, robbery, sexual offences
3
Q
Indictable offences heard summarily (kk1)
A
- Serious crimes but heard in the magistrates court.
- Statute : Criminal Procedures Act 2009 (vic)
- Both the court and the accused have to agree to have the offence heard summarily
4
Q
Committals
A
- A pre-trial procedure that occurs before indictable offences are heard at trial. The prosecution has the responsibility of demonstrating ‘prima facie’ (at first glance) sufficient evidence to support conviction
- Takes 7-8 months over a number of hearings
- Ensures only strong cases with sufficient evidence process to trial
- Allows the accused the opportunity to enter a plea after learning about the charges against them,
- Ensures a fair trial by making sure the prosecution discloses the case to the accused
5
Q
Burden of Proof (kk2)
A
- The Burden of Proof is a requirement within the legal system that places responsibility or onus on one party to prove the facts of a case
- In criminal law, this onus is on the prosecution
- Burden reversed occurs when:
. An accused’s defence is mental impairment ( they have to prove their mental illness)
. Possession of illegal substances on their property cannot be demonstrated to court on the contrary ( prove that they have no real connection to the possession)
6
Q
Standard of Proof (kk2)
A
- The Standard of proof refers to the level or extent of proof ( in other words the certainty or strength of evidence required to prove the case)
- In criminal cases, this is Beyond Reasonable Doubt, meaning there is no other logical or reasonable conclusion that can be drawn
7
Q
Presumption of Innocence (kk2)
A
- A person who has been accused of a crime must be presumed innocent until proven otherwise, therefore a person who is charged with a crime is called ‘the accused’ before they a re proven guilty
- Legislation: Charter of Rights and Responsibilities Act 2006 (Vic)
- E.g.
. The use of committals for indictable offences ensures that there is enough evidence to proceed to trial
. prior convictions are not released until sentencing
. an offender has the right to appeal a wrongful conviction
8
Q
Rights of the Accused - Right to be tried without unreasonable delay (kk3)
A
- The Charter of Human Rights and Responsibilities Act 2006 (Vic) states that a person charged with a criminal offence is entitled to a guarantee they will be tried without unreasonable delay ( sec. 21 and 25)
= they have the right to have a matter heard in court in the most efficient and timely manner - May be neutral delays which occur = reasonable
- Accused brought to trial as quickly as possible
- Time frame = 3 months (sexual offences) and 6 months (non-sexual offences)
- What constitutes reasonable is not defined: however, possible reasonable delays incl.: lack of facilities, medical emergencies, extent of evidence and interviewing witnesses
9
Q
Rights of the Accused - Right to silence (kk3)
A
- The entitlement whereby the accused does not have to say or do anything when being charged
- The Evidence Act 2008 (Vic): if the accused stays silent it cannot be inferred that they are guilty
- No adverse or negative conclusions can be drawn from the fact the e accused has not answered any questions
- If the accused answers some questions with selective silence (also cannot be inferred as guilty through selective silence)
- Safeguard: the accused does not have to give information, they are not forced to give evidence and they do not have to file a defence or call a witness
- An Exception is that they must give their name and address if asked
10
Q
Rights of the accused- Right to trial by jury (kk3)
A
- The entitlement that should an accused plead not guilty to an indictable offence, their guilt must be determined by a group of twelve ‘piers’ rather than a judge alone
- Legislation:
The Juries Act 2000 (Vic) = requires 12 jurors
The Criminal Procedures Act 2009 (Vic)= provision of jury empanelment - For indictable commonwealth offences, the express right to trial by jury is stated under section 80 of the constitution
11
Q
Victims (kk4)
A
- A victim is a person who has suffered directly or indirectly as a result of a crime
- Victims are not a party
- Legislation: The Victims Charter Act 2006 (Vic)
= recognises that victims should be offered certain information during investigations to reduce the likelihood of secondary victimisation experienced in the criminal justice system which leads to re-trauma
12
Q
The rights of Victims- The right to be treated as a vulnerable witness and give evidence using alternate arrangements (kk4)
A
- A situation where a victim is also a witness to a crime and is therefore required to testify in court. ( entitled to adjustments to reduce the trauma and stress involved)
- Legislation: Criminal Procedure Act 2009 (Vic)
- Available for Sexual offences, family violence offences, obscene/ indecent language or threatening behaviour and sexual exposure
- Arrangements available: testify in a separate room using a video link, request a screen to be put up, have a support person or do by their side, request legal representation not to wear formal robes, request legal representation for assault not to ask certain questions directly to the victim
13
Q
The Rights of Victims- The right to be informed about proceedings (kk4)
A
- Recognises that victims may require additional support due to being adversely affected by the crime, as such, victims should be entitled to be informed about support services and compensation, as well as details of how the legal system will carry out justice
- Legislation: Victorian Victims Charter 2006 (Vic)
- During the investigation, Victims should be informed about details of the offence that the accused has been charged with, the date/time/place of the hearing of the charges, the outcome of the criminal proceedings including the sentence imposed, why lesser or fewer charges have been laid, and details of any appeals
- Exception: victims are not entitled to information that is likely to put the investigation at risk
14
Q
The Rights of Victims- The right to be informed about the likely release date of the offender (kk4)
A
- May apply to be included in the victims register whereby they receive certain information about the offender who has been imprisoned
- Notified at least 14 days before the release of the offender, if the prisoner escapes, if the prisoner makes a submission to apply for parole
- Available for rape, sexual offences aggravated burglary, kidnapping stalking, child stealing, assault, offences involving injury punishable by imprisonment, culpable driving causing death, dangerous driving causing death/ serious injury, failing to stop after a motor vehicle accident causing death/ serious injury
15
Q
Principle of Justice- Fairness (kk5)
A
- All people can participate in the justice system and its processes should be impartial and open/ transparent
- This enables people to be treated justly without favouritism or discrimination
- Purpose: ensures innocent people are not found guilty of a crime they did not commit and upholds public confidence in the justice system
- Three Elements: Impartial processes, open/ transparent processes/ participation
16
Q
Fairness- Impartial/ Unbiased processes (kk5)
A
- Courts and personnel including magistrates, judges, and jury members are independent and impartial so they do not show bias towards parties and decisions based on facts and the law
- E.g.
The magistrate/ judge/ jury must acknowledge any association with either party and remove themselves.
Jury members are empanelled from the community at random to ensure there is limited bias.
Both parties have the opportunity to challenge jury members if there is perceived bias - Apprehended bias= a situation where a fair-minded person might believe that the person hearing or deciding a case might not bring an impartial mind
17
Q
Fairness- Open/ Transparent processes (kk5)
A
- The ability for the community to be informed and scrutinise the legal system through processes being transparent, which allows legal personnel to be held accountable and answerable for their actions
- E.g.:
The requirement that hearings be conducted in public (with certain exceptions i.e. courts needing to protect a witness or a child.
Court judgements are made available to the public.
Allowing the community, media and victims to attend court hearings.
Juries- members from the community being able to participate in and decide on a verdict
18
Q
Fairness- Participation (kk5)
A
- The ability for various individuals (i.e. the accused, victims and witnesses) to engage with the criminal justice system
- E.g.:
The opportunity to prepare their case through knowing the facts
The opportunity to examine witnesses
Use of a lawyer
Allowing victims to use alternate arrangements when giving evidence
The right to not testify against oneself
The presumption of innocence
19
Q
Principle of Justice- Equality (kk5)
A
- All people engaging with the justice system should be treated in the same way; however, 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
- Legislation: The Human Rights Charter states that:
Everyone is equal before the law, Everyone i entitled to equal prosecution of the law without discrimination, and Everyone has the right to equal and effective protection against discrimination - Two types: Formal Equality (same treatment) and Substanatative treatment (different treatment)
20
Q
Equality- Formal Equality (same treatment) (kk5)
A
- All Individuals are treated the same and given the same level of support regardless of their differences or characteristics such as race, religion, gender, identity or age
- E.g.:
All accused are entitled to the presumption of innocence
Everyone who contacts a community legal system should receive the same information
All accused who plead not guilty should be given access to court systems
All victims should provided information about proceedings- unless they don’t want to
All accused people should be entitled to a fair trial with the same processes
21
Q
Equality- Substantive Equality (Different treatment) (kk5)
A
- If the legal system did treat people in the same way, doing so causes disadvantage/ disparity, then measures/ adjustments should be put in place to allow people to participate in the justice system
- E.g.:
The provision of interpreters
The provision of legal aid
Alternate arrangements made by vulnerable witnesses
The provision of the Koori court for First Nations people
22
Q
Principle of Justice- Access (kk5)
A
- All people should be able to engage with the justice system and its processes on an informed basis
- Engagement= utilise/ interact with
- Informed= awareness of processes and procedures/ awareness of their rights
- Two Elements: Engagement and Informed basis
