Unit 3 AOS 1 " victorian criminal justice system" Flashcards
The australian legal system is composed of
-Australian constituion
Sources of law
statute law= parliment made
common law= law made by courts
The constitution allows for the seperation of power into what 3 divisions
-legislative(parliment
-executive(govt)
-Judicial (judges)
bicameral defintion
2 seperate houses
process of creating a bill
- bill introduced to lower house
- read, considered + debated
- vote, majority is required
- bill is introduced to upper house
- read, consider debate x3
- vote majority required
- royal assent
rule of law
everyone is bound by law, expected to follow it
legal principles to uphold rule of law
Anything within CAKES
e.g -fair and prompt laws
-law is known and accessable
-presumption of innocence
types of offences
indictable- large
summary-small
the supreme court hears
murder and super serious cases
the high court hears
appeals and constitutional matters
purpose of the criminal justice system
-decide if accused is guilty
-impose sanction
timeline of criminal justice system
- investigation of crimes
- charges against an accused
- pre trial procedures
- determining guilt
- sentancing
potential compications of criminal justice system
each styate/ territory has own system
common wealth offences
can pass laws if it relates to constitutional powers
states have power to make laws if
it creates social cohesion
law bodies involved in criminal law
magistrates court, county court, supreme court
enforceable individuals involved in the criminal justice system
vic police, director of public prosecutions, offfice of public prosecutors
summary offences
-do not need a jury
-only a hearing
law relating to summary offences
summary offences act 1966
indictable offences
more serious offences, result in a trial
indictable offences law
crimes act 1958
commital proceedings
person is charged with indictable offence & pleads not guilty
purpose of commital proceedings
-person is charged with indictable offence & pleads no guilty
-takes place at magistrates court
-magistrate sees if there is enough evidence of the accused to stand trial
overall outcomes of commital proceedings
-assesment of evidence
-entering plea or accused
-disclosure of prosecutions case- upholds fairness
-possible cross examination
indictable offences herd summarily
indictable offences where accused pleads guilty but not always, when accused is happy to have a small trial
burden of proof
beyond reasonable dount (criminal), on prosecutor
standard of proof definition
extent case needs to be proved
presumption of innocence
if someone is accused of a crime, they are to be presumed innocent until proven guilty
upholding the presumption of innocence
-accused has a right to silence and this cannot be taken as guilt
-police must have reasonable belief that a person commited a crime before arrest
-right to appeal
what happens to the burden of proof if it falls onto the accused (criminal law)
standard of proof becomes on the balance of probabilities
Rights of the accused definition
an accused person still has human rights
rights of the accused are protected by
-vic charter of human rights and responsibilities
-constitution
-statute law
what parts of the charter protect accused individuals
23-27
the rights of the accused (UDJS)
-right to be tried without Unreasonable Delay
-the right to a trial by Jury
-the right to Silence
right to be tried without unreasonable delay definition
ability of accused to have a fair trial, allows the trial to only be delayed if reasonable
example of reasonable delay
the pandemic
the right to a trial by jury
allows to meet communities expectation of justice, variety of opinions
the right to silence
accused only needs to provide name and adress, if the accused chooses to be silent this cannot be taken as an admission of guilt
ways fairness is upheld through accused rights
-right to silence= prosecution is made to bring the evidence
-juries are unbiased and impartial
ways fairness if threatened through accused rights
-no legal training/ expertise for jurrors
-jurors may maintain bias
ways equality is upheld through accused rights
-all accused get these rights unbiased on charicteristics
ways equality is threatened through accused rights
not applicable
ways acess is upheld through accused rights
-trials are held without unreasonable delay
-presence of juries simplify court proceedings
ways acess is threatened through accused rights
if a case moves too fast, it doesnt give the accused time to seek resources
overall experiences of victims in the court-negative
-lack of understanding about processes
-feeling their experience is not considered
-victims not being given sufficient info on assistance by investigators and presecutors
-victims find infor and are rarely given it
-court proceedings can bring up past trauma
victims charter
establishes rights for victims in terms of prosecution process and sanctioning
problems with victims charter
a breach of it does not necceserily mean civil action can be taken
rights of victims
-right to give evidence using alternative arrangements
-the right to be informed about proceedings
-right to be informed about the offenders release date
the right to give evidence using alternative arrangements
victims can provide many diffrent types of evidence to ensure their mental and physical safety including:
-video calls
-screen to block line of view of accused and victim
-support person or dog
-restrictions of people allowed in court room
-informal dress and action from legal practitioners
people able to have alternative arrangements for evidence
-sexual offences including exposure
-family violence
-threatening behaviour
example of a support dog
court dog lucy
the right to be informed about proceedings
the victim should:
-be provided with help services
-be provided with any changed details of case
-if the case is not being persued and an explination
-how the victim can be informed about hearing details
-outcome of proceeding (sanctions)
-details of appeals
the right to be informed about the offenders release date
this entails
-a victim register that provides possible release dates and parole, aswell as sentancing length, escape attempts
this can only be granted if:
-they are a victim of a violent act
how is fairness upheld in the rights of victims
-aims to prevent trauma
-victims have oppurtunity to be infomred about the accused
how is fairness threatened in the rights of the victim
only some witnesses are protected, not all are seen as “voulnerable’’
how is equality upheald by the rights of victims
- unbiased justice system
-victims of violent crimes can be placed on a victims regiter reguardless of personal charicteristristics
how is equality threatened through the rights of victims
victims register is not available for everyone
how is acess upheld through rights of victims
-all victims can acess help services
-individuals contact victims on information
how is acess threatened through rights of victims
not all victims are able to acess relase dates (right to know release dates)
fairness definition (POJ)
impartial and just treatment or behaviour without favoritism or discrimination including fair trials and processes
fairness includes
-impartial processes
-oppurtunity to participate
-transperancy
-persumption of innocence
Equality definition (POJ)
state of being equal before the law, in status, rights and oppurtunities
equality includes
-same treatment
-diffrent treatment
Acess definition (POJ)
extent to which people can understand legal rights and degree they can use them
acess includes
-engagement
-informed basis
justice definition
being genuinely
victorian legal aid quote
“representing ensures the degree of culpability is appointed fairly”
why do we have legal aid
-justice system oftern complex, difficult to naviagate
-accused can be unaware of their rights
-government funded institutions help principles to be upheld
instituions of legal representation
-victorian legal aid (VLA)
-community legal centres (clcs)
-both government funded
role of VLA
-provides legal assistance to community at no or little cost
-prioritieses people who could not get legal assistance in any other way
-VLA aims to resolve and prevent legal problems through upholding transperancy and fairness
Objectives of VLA
-provide legal aid in most economic, efficient and effective manner
-provide community with improved acess to justice and legal remedies
-manage resources to enable aid available at a reasonable cost
importance of VLA
-provision of legal information and education
-legal advice
-research legal aid issues
critisisms of VLA
-not enough funding to meet demands of the community
-critisised for representing notorious criminals
-not able to help with civil cases oftern
what free support does the VLA provide
-publications online
free duty lawyer services VLA provides
VLA lawyers who are at cour, can provide advice, only to people below the income survey
Grands of legal assistance the VLA provides
-legal assistance to people who cant afford lawyers,
only to people who pass the income and wealth survey
test used to dispay wealth
means test
if one isnt able to pass means or income test but wants to be self representing, the court can agree for a
court order to enable VLA to represent the individual
what is CLC
community based, non for profit organisation that can recieve govt. support
clcs provide
borad range of legal services, advice and info
people who work in CLCs
-students
-voluntary lawyers
CLC is like
safety net for VLA
clc will very rarely
represnt people in court
Types of CLCs
-generlist clcs
-specualist CLCs
generalist CLCs
provide broad legal services to people in particular areas
example of generalist CLCs
eastern community legal centre, box hill, only provide advice for people in this area
specialist CLC’s
focuses on particular group of people or area of law
example of speicalist CLC
victorian aboriginal legal services
what can CLCs supply
-legal info
-advice
-asework services
clients of CLCs
-children
-women
-people at risk of homelessness
most common CLC cases
-family violence
-parenting
-employment
funding CLCs
recieve funding from state, federal and local government, private donations, oftern limited, demad from community
strengths of CLC’s
-free legal info
-offer services in diffrent languages
-educate the community on their rights
weakness’s of CLC’s
-insuficient funding
-limited mostly to summary offences
-limited staff/ volunteers
pre trial procedures
when someone is charged with a crime, stepas are taken before trial occurs
goal of pre trial procedures
-result in a early guilty plea
-test strength of prosecutions case
benifits of an early guilty plea
-saves time by courts
-saves resources of courts
-victims and witnesses are spared experience
benifits of early guilty plea for the accused
-reduces stress and trauma
-saves money on legal representation
-can count towards being a mititgating factor
how much can a gulty plea reduce a sentance
20-30%
plea negotitiaons
also known as plea barganaing or charge negotitations
plea negotiations occur between
prosecutor and accused comt to agreement of charges
plea negotions cannot
be used against accused
possible outcomes of a plea negotitation
-accused pleads to fewer charges
-accused pleads guilty to a charge, but an agreement is reached about the facts
-accused pleads guilty to a lesser charge
plea negotiation process
- accused indicates willingness to discuss charges
- prosecutuon can sonsult with victims their opinion is not binding
- discussions ocucr on a without prejudice basis
outcomes:
consult about charges
accused rejects plea negotitation
accused pleads guilty to fewer charges
accused pleads guilty but key facts are agreed to
accused pleads guilty to a lessor charge
purpose of plea negotiations
-ensure certainty of outcome of criminal case
-save on cost, time and resources
-prompt resolution to a criminal case without stress, trauma and inconvenience
appropriteness of plea negotiations
must only occur when in publics intrest
determining factors
-co operation and willingness of accused
-views of victims
strengths of plea negotitations
-saves trauma and inconvenience for victims and witnesses
-time and expense of going to court
-provides certainty of outcome
weaknesses of plea negotitations
-lack of transperancy- can be done in private
-failed plea negotiations can be a waste of resources
-victims dont have final say and may not agree with outcoome
magistrates court juristictions
o.g= application for warrants
commital herings
bail hearings
summary offences
indictable cases herd summarily
appelate= none
county court juristiction
o.g= trials for indictable offences such as;
-rape
-armed robbery
-serious drug offences
-manslaughter
appelate (from magistrates)
-offenders appealing against conviction
-appeals by offenders/ prosecution against sanction
supreme court juristiction
o.g= unlimited criminal juristiction, conducts cases of most indictable including; murder, terroristm, attempted murder
appelate= from country court
juristiction of high court
o.g= none
appelate= all appeals origignally heard in county court or supreme court- trial division
specialisation
courts develop expertise in certain areas of law that they deal with regularly
examples of specialisaion
supreme court=speciailsed w/ indictable offences
county court= expertise in criminal matters of sexual+ drug offences
magistrates=summary offences, quick
appeals
dissatisfied party can challenge decisions in a higher court
-allows for fairness by ensuring mistakes are corrected
appelant
person applying for appelate juristiction
grounds for appeal
-questions of law, conviction itself
-severity of sanction
-acquittal
strength of plea negotiations
-heirachy facilities specialisation on criminal matters, allowing for them to be herd more efficiently
-facilitates process of appeals, can correct errors
weaknesses of plea negotiations
-court system can be confusing
-no automatic right to appel
VLA VS CLC
VLA:
government sponsored
means and assets tested
judges can make requests to VLA
CLC:
community sponsored
rely on volunterrs
generalist or specialist
if it is a summary offence there is
no right to trail by jury
what states the rights of an accused
sections 25-27 of the the human charter for rights and responsibilites
how many people in a jury
12
what does the jury do
determine guilt
what does the judge do
sentance
what tetermines a summary offence
petty offences, generally considered to be less serious
why can specialisation be good for an accused
allows for saving on llegal rep if moved to magistrates court
sentance indication
judge tells accused the likely sentance before plea barganing
bail
released until court date
charicteristics of VLA
-recognised by statutes
-judges can request
apprporiateness of plea negotiations
-there are a series of determining factors
-likelihood of the witness giving evidence
-co operation of and willingness of the accused
summary offences are known as a
hearing
indictable offences are known as a
trial
factors that depict what is “reasonable” delay
-the nature of the crime
-the ability to find evidence and complexity of the evidence
-the number of witnesses and their locations
why are juries important
-limit power of the state
-ensure justice is administered through community standards
-enable community to participate directly in legal procedures
victims should be informed on: in the right to be informed about proceedings
-where an accused has been charged
-if no charges have been laid and why
-outcome of court actions
where do victims put their name to request likely release dates
victims register
what does the victims register allow an individual to do
-know the length of a sentance given
-know the likely release of the offender
-if a supervision order has been made
example of a generalist clc
fitzroy leagl service
example of a specialist clc
victorian aboriginal legal service
when plea negotiations are appropriate
-win for prosecutor and avoids the cost of a trial
-they free up court resources
-victims and witnesses do not have to sufferer truama
when plea negotiations are not approporiatec
-high profile cases, if there is a need for transperancy
-if victim does not want the accused to recieve a less serious crime( prosecutior does not have to follow this though)
-if prosecutors only do this because they believe they would not win in other cases
role of judges
-direct jury ( e.g silence is not an admission of guilt)
-ensure procedure rules followed
-determine appropriate sanction
role of magistrates
-hear bail applications
-hear commital proceedings
-determine sanction
