Unit 3 AOS 1A Flashcards
Parliament
a formal assembly of representatives of the people that is elected an the people and gathers to make laws
eg.) 1 CWTH parliament
6 state parliament
2 territory parliament
Framework established through the ‘Commonwealth of Australia Constitution Act 1st Jan 1901’
Government
The ruling authority with power to govern, formed by the political party or parties (know as a coalition) that holds the majority in the lower house in each parliament. The members of Parliament who belongs to this political party to from the government
Opposition
the political party that holds the second-largest number of seats (after the government) in the lower house. The opposition questions the government about policy matters and is responsible for holding the government to account
Crossbenchers
members of Parliament who are not members of either government or opposition (i.e. independent members or members of minor parties). They are named after the set of seats provided in parliament for them, called the ‘crossbench’
Statute
a law made by parliament; a bill that has passed through parliament and has received roval assent also known as legislation or an Act of Parliament
Royal Assent
the formal signing and approval of a bill by the Governor-General (at the Commonwealth level) or the governor (at the state level) after which the bill becomes an Act of Parliament (also known as a statute)
Jurisdiction
the lawful authority (or power) of a court, tribunal or other dispute resolution body to decide legal cases
Common law
law made by judges through decisions made in cases. Also known as case law or judge-made law
Precedent
a principle established in a legal case that should be followed by courts in later cases where the material facts are similar. Precedents can be either binding or persuasive
summary offences
Summary offences are minor/less severe crimes that are committed by the accused.
Examples:
Drink driving, jaywalking, minor assaults, minor drug possession, common assault
Summary offences can recognise by:
Being listed within the Summary Offences Act 1966
Being heard in the Magistrates’ Court of Victoria*
where summary offences are heard
The Magistrates’ court is Victoria’s lowest court.
The final hearing in which both parties will put their case before a magistrate
Pre-trial procedures:
There are no committal hearings for summary offences, nearly all accused are granted bail for summary offences. Most summary offences are resolved through a single mention hearing whereby the accused will be sentenced.
Common sanctions handed down for summary offences
- Adjourned undertaking - with or without a recorded conviction
- Fines
- CCO
- Imprisonment - for maximum of 5 years with multiple offences/ 2 years for single offence
indicatable offences heard summarily
Indictable offences heard summarily are a group of indictable offences that are less serious.
Examples: theft and burglary if the value of the property stolen is less than 100,000, recklessly causing serious injury, property damage
Legislation:
Criminal Procedures Act 2009 (Vic)
when can indicatable offences be heard summarily
During a committal proceeding, the Magistrate will determine whether an offence can be heard summarily. This may be allowed if:
- The offence is not punishable by a maximum term of more than 10 years imprisonment
- The court agrees and determines that it is appropriate
- The accused consents to having their offence(s) heard summarily.
Why individuals choose indicatable offences to be heard summarily:
An accused person will generally choose to have their offence heard summarily where possible as it is less costly, time-consuming and, the maximum penalties imposed in the Magistrates’ court are less severe.
indictable offences
Indictable offences are serious/more severe crimes.
- The offence being listed in the Crimes Act (Vic) 1958
- It is heard during a trial in the County or Supreme Court
- It involves a committal
Examples:
Murder, robbery, sexual offences, kidnapping, culpable driving causing death
where indicatable offences are heard
County or Supreme Court and final hearings are referred to as trials. A jury is used to determine guilt if the accused pleads ‘not guilty’.
Pre-trial procedures - committals
pre-trial procedure that occurs before indictable offences are heard at trial in the County or Supreme Court. At this stage, it is the responsibility of the prosecution to demonstrate to the Magistrate that there is ‘prima facie’ - at first glance - sufficient evidence to support a conviction at trial.
Purpose of committal proceededer
- Ensure that only strong cases with sufficient evidence proceed to trial
- Allows the accused the opportunity to enter a plea after learning about the prosecution’s case against them
- Ensure a fair trial by making sure that prosecution discloses their case to the accused
- Provides the accused the opportunity to test the prosecution’s case through cross-examining witnesses
Parties in the criminal justice system-Prosecute
The prosecution is a term that is used to describe the party that presents evidence in court on behalf of the state (Vic) or the Cth against a person accused of committing the crime.
Parties in the criminal justice system- the accused
This is the individual who has been charged with a crime. There can be more than one accused in the case
prosecution in serious offences
The Director of Public Prosecutions (DPP) and Crown prosecutors prosecute serious crimes on behalf of the state in the County and Supreme courts
prosecution in minor offences
For minor offences, Victoria Police officers will usually prosecute crimes in the Magistrates’ court
standard of proof
This refers to the level of proof or the strength of evidence required to prove the case.
In a criminal case, this standard is beyond a reasonable doubt.
The prosecution must prove beyond a reasonable doubt that the accused is guilty.
Burden of proof
The burden of proof is a requirement within the legal system that places responsibility on the party to prove the facts of a case.
The onus rests upon the prosecution to prove the accused is guilty.
Legislation- Criminal Code Act 1995 (Cth)
reverse burden of proof
There are some few instances where the burden is reversed e.g.
* If the accused’ defence for their actions is mental impairment
* Possession of an illegal substance on their property and cannot demonstrate to the court on the contrary
Beyond reasonable doubt
This does not mean that no doubt can exist at all, but rather, that no reasonable doubt is possible by the evidence presented or no other logical or reasonable conclusion can be drawn.
presumption of innocence
principle within the criminal justice system whereby a person who has been accused of a crime must be presumed innocent until proven otherwise.
Legislation:
found under Section 25 Charter of Rights and Responsibilities Act 2006 (Vic); prior to this it was a well-established common law right.
how is presumption of innocence upheld
- The right to silence
- The accused can apply for bail
- For indictable offences, the prosecution must go through committals to demonstrate that there is sufficient evidence to proceed to trial
- Prior convictions cannot be revealed until sentencing
The right to silence
an accused person does not have the obligation to answer any questions (other than name + address to the police) or be pressured to prove their innocence or assist the prosecution with their case.
application for bail
normally granted unless the Magistrate is convinced that they will abscond, be a danger to the community or themselves
right to be tried without unreasonable delay
The Charter states that a person charged with a criminal offence is entitled to a guarantee that they will be tried without unreasonable delay .
This right is without discrimination which means every accused person is entitled to this provision.
What is ‘reasonable’ is not defined but considered in conjunction with - the length of the delay, the complexity of the case, number of offences committed and the reasons for the delay
Statutory protection of the right to be tried without unreasonable delay;
Section 21(5) of the Charter of Human Rights and Responsibilities Act 2006 (Vic)
why is right to be tried without unreasonable delay important
- Witnesses’ memories fade + key aspects of the offence may be forgotten which impacts the validity of the trial which may result in an unfair result for the accused.
- An upcoming trial may cause stress on the accused, victims and their families bcs of unknown outcome
- If a criminal trial has garnered media attention, increased delays may make it more difficulty for 12 unbiased jury members to be found
- Long delays before the trial can increase legal costs
right to silence
The term ‘right to silence’ refers to an entitlement whereby the accused does not have to say or do anything when being charged with an offence. It helps the accused to avoid self-incrimination.
Legislation
* The Evidence Act 2008 - negative inferences cannot be drawn should an accused refuse to answer questions
How is right to silence safeguarded
- The accused can refuse to answer any questions and does not have to give information as part of an investigation of a crime
- The accused cannot be forced to give evidence in a criminal trial or answer any questions
- Under the Jury Direction Act 2015 (Vic), an accused’ lawyer can request that the judge direct the jury to be aware that failure of an accused to given evidence + call witnesses cannot be used as evidence against the accused as a sign of guilt.
Why is the right to silence important (3points)
- reinforces the burden of proof in a criminal case in that the onus rests upon the prosecution to prove the accused guilty
- the right to silence ensures an accused is able to refrain from making such statements that could be incriminating
- The right to silence aims to reduce the power imbalance between the prosecution and the accused. Where an accused was unlawfully coerced into admitting certain details or confessing to a crime, this may be inadmissible evidence.
right to jury
The right to trial by jury refers to the entitlement that, should an accused plead not guilty to an indictable offence, their guilt must be determined by a group of twelve ‘peers’ rather than a judge alone
Legislation in Victoria
The Juries Act 2000 (Vic) - requires there to be a jury of 12
The Criminal Procedures Act 2009 (Vic) contains provisions for jury empanelment and jury directions
why is right to jury important (3 points)
Having a jury provides the accused with an impartial and unbiased decision maker in criminal cases. As they are randomly chosen, they should also represent a cross-section of the community better than one judge.
The presence of a jury will likely result in lawyers using clear, plain-English instead of legal jargon when presenting evidence. This enables all parties of the case, including the jury, the accused and the victim to understand proceedings with greater ease.
the requirement in nearly all cases is for the jury to be convinced beyond a reasonable doubt that the accused is guilty prevents innocent persons from being wrongfully convicted of a crime they did not commit.
strength of right to be tried without unreasonable delay
*An accused person does not have to endure prolonged periods of stress and anxiety that may be experienced if having to wait a long time for their trial to commence.
Witnesses are more likely to remember key facts of the events they saw if a criminal trial takes place in a reasonable time after the events in question occurred, promoting fairness as evidence presented is therefore, more reliable.
weakness of right to be tried without unreasonable delay
*A trial that is delayed for years may still be considered ‘reasonable’ if the delay was a result of actions of the accused, such as their alleged crime being particularly complex, thus requiring a range of evidence to be collected against them.
*Considering a trial may be delayed for extended periods if reasonable, the memory of witnesses may fade, or a witness may pass away, preventing a fair trial from being achieved.
- backlogs in court can be reasonable delay
strength of right to silence
*The presumption of innocence is upheld by the right to silence as an accused is presumed innocent, and does not need to say anything to achieve this presumption.
*The right to silence can reduce the power imbalance between the prosecution and the accused as police are unable to coerce an accused into making false confessions.
- protection against self incrimination
weakness of right to silence
- Although a judge may direct a jury that an accused’s silence is not an indicator of their guilt, a jury may still inadvertently believe an accused failing to defend themselves is an indicator of guilt, potentially leading to an unfair result.
- The right to silence can cause an accused to be uncooperative with police, possibly resulting in barriers to justice for the victims
Right to silence ;Common law protection - established through case law
- The accused has the right to remain silent
- No adverse/negative conclusions can be drawn from the fact that the accused has not answered any questions
- When an accused has chosen to answer some questions but not others ‘selective silence’ this cannot conclude guilt
Exemption of right to silence
- If the police believes that a person has committed or about to commit a crime, or may be able to assist in an investigation of an indictable offence, the person must give their name and address if asked to do so
How are the three rights of the accused safeguarded
*double check
In Victoria, these rights are protected by statute, specifically the Charter of Human Rights and Responsibilities Act 2006 (Vic)
The rights located within this Charter are based upon those outlined in the International Covenant of Civil and Political Rights (ICCPR 1966) -
strengths of right to trial by jury
*The use of a jury aims to ensure an accurate reflection of society is selected at random to determine an accused’s guilt, therefore promoting fairness as the jury is inherently impartial when making determinations.
A jury will encourage law yers to speak clearly and avoid using legal jargon when presenting their evidence, promoting access as jurors and the parties can gain a better understanding of the court proceedings.
weakness of right to trial by jury
- To have a jury decide a case is costly and time consuming Therefore, using a jury to determine an accused’s guilt may place strain on the justice system and cause delays, impeding the ability of the right to trial without unreasonable delay to be satisfied for all accused persons.
- Juries may nos always be impartial as they could he swayed by preconceived biases or emotions, deciding an accused’s guilt based on these factors as opposed to just the plain facts of the case.
right to trial by jury Commonwealth legislation:
Section 80 of the Australian Constitution guarantees that if a person were to be charged with an indictable Cth offence, they are entitled to a jury.
However, this is only available for Cth offences and most criminal offences are legislated by states’ statutes and, the Cth can determine which offences are considered indictable.
right to give evidence using alt arrangements
Definition:
This right refers to a situation whereby a victim is also a witness to the crime and may be required to testify in court. When this occurs, victims are entitled to certain adjustments to accommodate and lessen further trauma/stress
Legislation:
Criminal Procedure Act 2009 (Vic)
purpose of right to give evidence using alt arrangements
Purpose:
The purpose of alternate arrangements is to avoid secondary victimisation - this refers to instances whereby the victim of crime suffers further harm through negative experiences of the criminal justice system
offences where the victim is entitled to using alt arrangements
To be eligible to testify as vulnerable witness, the offence that they are a victim of must be:
- A sexual offence
- A family violence offence
- An offence of obscene, indecent language or threatening behaviour
- An offence of sexual exposure
examples of alt arrangements
Using a screen to remove the accused from the witness’ line of vision
Allowing a person to be beside the witness while they are giving evidence to provide emotional support
Closing the court to everyone except specified people while the witness is giving evidence; process less intimidating for witnesses.
victim
Definition;
A victim is a person who has suffered directly or indirectly because of a crime.
Legislation:
In Victoria, the Victim’s Charter Act 2006 (Vic) - The Victim’s Charter outlines key principles in relation to victims
strengths of right to give evidence using alt arrangements
- Alternative arrangements provide witnesses, who may otherwise be too intimidated to participate in a trial, a means by which they can still be involved. This reduces the likelihood of the trial being discontinued due to victims’ fear of giving evidence.
- Alternative arrangements can ensure victims do not present unreliable evidence as a result of feeling intimidated in front of the accused.
limitation of right to give evidence using alt arrangements
- Not all witnesses meet the eligibility criteria to give evidence using alternative arrangements. Only witnesses involved in trials relating to certain offences.
- Despite being eligible for alternative arrangements, some witnesses may still wish to avoid giving evidence.
definition of right to be informed about release date of the accused
Definition:
A right provided to victims of violent crimes whereby they can apply to be on the Victims’ Register and be informed about the likely release date of the offender who has been imprisoned.
Legislation:
S17 of the Victim’s Charter Act 2006 (Vic) - a person can be placed on the Victim’s Register if they, or their family member, are a victim of a criminal act of violence
examples of violent crimes that is applicable to this right to be informed about release date of the accused
Rape and other sexual offences
Aggravated burglary
Child stealing
Stalking
Kidnapping
Offences involving assault or injury punishable by imprisonment
Failing to stop after a motor vehicle accident causing death or serious injury
Culpable driving causing death
Dangerous driving causing death or serious injury
Victims of these offences will qualify for the Victim’s Register - these ‘criminal acts of violence’ are defined in the Corrections Act 1986 (Vic)
strengths of right to be informed about release date of the accused
*The right to be informed about the likely release date of the offender can ensure victims do not face uncertainty, promoting fairness.
Being aware of the likely release date of an offender can enable a victim to rake precautions, such as applying for or extending an intervention order to prevent the offender from contacting them.
weakness of right to be informed about release date of the accused
- Only victims of serious offences can apply to be on the Victims Register for information about the offender. This right is therefore limited in achieving equality as it does not extend to victims of less serious violent offences.
- A victim who feels their right to be informed of the likely release date of the offender, as outlined in the Victims’ Charter Act 2006 (Vic), has been infringed, cannot cake civil action.
strengths of right to be informed of proceeding
- The right to be informed about proceedings ensures police and prosecutors keep victims informed and minimise further suffering, promoting fairness.
- All victims are provided with information about proceedings, regardless of the type of offence involved, and regardless of their personal characteristics, promoting equality.
weakness of right to be informed about proceeding
- As the criminal justice system is complex. information about proceedings may be confusing to victims if they have no prior knowledge and experience of the legal system.
- A victim who feels their right to be informed about the proceedings, as outlined in the Victims’ Charter Act 2006 (Vic), has been infringed, cannot take civil action.
elements victim can be informed about proceeding
- The offences the accused has been charged with - whether the charges are withdrawn, changed and the reasons why
Key developments in the case - this includes:
* Whether bail has been granted to the accused
* The date and time of trial
* Whether an appeal has been lodged following a trial, and if so, details about the grounds for appeal
Outcomes of a trial or appeal - verdict and sanctions imposed by the court if the verdict is guilty
However, victims are not entitled to information that may put the investigation at risk or, if they choose not to receive that information
purpose of the right to be informed about proceedings
- Being informed about proceedings against the accused is important for victims as they often have a strong desire to see justice being carried out/to ensure that the accused is held accountable for their crime
- Uncertainty is eliminated, which can minimise the risk of victims suffering secondary victimisation due to legal proceedings
The right to be informed about proceedings
An entitlement whereby victims can be provided with information about the case they are involved in, subject to certain limitations.
Legislation:
Victims Charter 2006 (Vic)
purpose of The right to be informed about the release date of the accused
- Victims of violent offences often have a strong desire to know the offender is in prison - this provides a level of comfort for their safety
- Victims can take precautions, such as applying for or, extending an intervention order to prevent the offender from contacting them
- Victims on the Register can also make submissions to the Adult Parole Board to express the effect that the offender’s release may have on them, and this will be considered when the decision to grant parole is made.
Victims Register
a Victorian government record of victims who have registered to receive information about a prisoner or offender.
fairness
All people can participate in the justice system and its processes should be impartial and open
impartial processes
Courts and personnel - including judges, magistrates and jury members are independent and impartial. This means they should not show bias towards either party and the case must be decided on facts and law - not prejudices
examples of impartial processes
- The judge/magistrate and jury must acknowledge any association with either parties and remove themselves from the case
- Jury members are empanelled from the community at random to ensure limited bias
- Both sides can ‘challenge’ a jury member if there is perceived bias
open processes
The ability for the community to be informed and scrutinise the legal system through processes being transparent. This allows legal personnel to be held accountable and answerable for their actions.
example of open processes
- The requirement that hearings be conducted in public - with certain exceptions
- Court judgements (decisions) are made available to the public
- Allowing the community, media and victims to attend court hearing
examples of participation
- The opportunity to prepare their case through knowing the facts - during committals the prosecution must disclose all relevant evidence to the accused
- Use of a lawyer - the accused should be able to defend themselves through legal assistance chosen by them; if they are eligible should receive assistance via VLA
- Allowing victims to use alternate arrangements when giving evidence - vulnerable witness
equality
All people engaging with the justice system and its processes 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.
Equality
All people engaging in the justice system should be treated in the same way. if the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow all to engage with the justice system without disparity or disadvantage
Legislation:
The Human Rights Charter states that
same treatment (formal equality )
All individuals are treated the same and given the same level of support regardless of their personal difference or characteristics
examples of formal equality
All accused are entitled to the presumption of innocence - regardless of their characteristics
Everyone who contacts a community legal centre should receive the same information
All accused who pleads not guilty should be given access to the courts system
different treatment (substantive equality )
If the legal system did treat people in the same way but in doing so causes disadvantage/ disparity then adjustments should be put in place to allow people to participate in the JS
examples substantive equality
- The provision of interpreters for all individuals - accused/victims/witnesses who do not understand English
- The provision of Legal Aid to support accused who cannot afford legal representation
- The provision of the Koori court for First Nations offenders
access
All people should be able to engage with the justice system and its processes on an informed basis.
engagement
engage with the justice system, people need to be able to use and participate in the system. This can either be enhanced or hindered
physical access
the location of courts in Victoria indicate that they are situated in cities or areas of population density.
people living in rural areas having limited access or having to endure additional hardships in travel time to go to court.
VLA lack of funding
Victorian Legal Aid is limited in its funding and thus ability to support individuals who do not have the means to pay for legal representation.
Technological access
hearings and conferences can be conducted virtually/online. However, individuals living in areas that are lacking infrastructure for internet access or those who have a disability/the elderly may have difficulty in utilizing these methods.
legal support services informed basis
having free access to legal support services can help people be more informed about their rights.
These can include going to generalist community legal centres that are in certain suburbs or specialist community legal centres such as those specifically designed to assist women or refugees
informed
People should be aware of their legal rights and how to navigate the processes involved in they case. This means receiving adequate information to make an informed decision
education informed basis
individuals with higher levels of education are generally more informed about their rights and have a more thorough awareness of the legal system.
Information published by courts should be printed/produced in plain-English to support those with lower literacy levels.
legal representation informed basis
having legal representation is one of the most effective ways that a person can be informed about their rights and legal processes.
Although VLA is limited from providing full support for everyone individual that requests assistance
there are targeted and tiered level of assistance e.g. mention lawyers to full grants of legal assistance.
engagement synonyms
utilise, interact with
informed synonyms
awareness of processes and procedures, awareness of their rights
Victorian Legal Aid definition
an independent, government funded agency that provides free legal information and advice to the community and representation to people who cannot afford to pay for a lawyer to assist with their case.
VLA purposes
provide accessible legal aid services, such as by providing individuals with information and advice over the phone
provide free or low-cost legal aid services to those who need it the most, ensuring legal aid is available on an equitable
basis in Victoria
ensure legal aid services are distributed to parties based on their financial situation, individual circumstances, and
seriousness and nature of their problem
role of VLA (accused): Provide free legal information (GENERAL)
General legal information is readily available on the VLA website, in brochures, and over the phone.
These resources aim to educate the community on legal matters, criminal law procedures, and provide general legal support.
Resources are also available in many different languages.
Eligibility requirements (accused) : provide legal info (GENERAL)
Free and accessible to everyone.
role of VLA (accused): Provide free legal advice (SPECIFIC)
VLA offers advice regarding court procedures and proceedings that will apply to a specific case. Advice can be provided over the phone, in person, or over video call.
Eligibility requirements (accused) : Provide free legal advice (SPECIFIC)
VLA
Legal advice tailored to a particular matter is only provided to eligible accused persons, generally based on their income. VLA prioritises more vulnerable groups, for example:
* children
* First Nations peoples
* those with a disability
* those who cannot speak English.
role of VLA (accused): Provide duty lawyer services
Duty lawyers are lawyers who are present in the Magistrates’ Court and the Children’s Court on a particular day and can provide information and case-specific advice for hearings occurring on the same day. Duty lawyer assistance can extend to representation in court depending on the accused’s circumstances.
Duty lawyers are not available for indictable offences or committal proceedings.
In some circumstances,
Eligibility requirements (accused): Provide duty lawyer services
Duty lawyer services are free for:
*child protection
* youth crime
*adult summary crime
* intervention orders
*family matters
*some civil matters, such as Mental Health Tribunal hearings
For adult criminal offences, accused individuals not in custody must also satisfy the income test.
role of VLA (accused ) : Provide grants of legal assistance
VLA can provide a grant of legal assistance to an accused who cannot afford legal representation.
Legal assistance can be provided by a VLA lawyer or an external lawyer who is organised by VLA.
The lawyer can assist the accused with the preparation of the case, including any relevant documents, as well as representing the accused in court.
eligibility requirement (accused ) : Provide grants of legal assistance
The accused must satisfy the means test to be eligible for a grant of legal assistance.
VLA may also consider how likely the case is to succeed and if the case will benefit the community.
role of VLA (victims) : Provide legal information
VLA provides information on its website and through its Victims Legal Service. It also provides links to
external resources, such as child witness services,
Victims of Crime Assistance Tribunal, and the OPP website, that assist victims of specific crimes or in certain circumstances.
Eligibility requirements (Victims): Provide legal information
All victims can access these resources.
role of VLA (victims) : Provide duty lawyer services
Duty lawyers are present in the Magistrates’ Court to assist victims with information, legal advice, and representation in relation to intervention orders.
Eligibility requirements (Victims) : Provide duty lawyer services
All victims are entitled to information from duty lawyers, but advice and in-court advocacy are prioritised based on certain criteria, whereby children and adults with a disability have higher priority.
role of VLA (victims) : Provide a victims legal service
victims legal service Helpline is a specialist advice phone line that provides legal information and advice, particularly regarding the financial impact of a crime. This service is a partnership with VLA, CLCs, and Aboriginal legal services.
Eligibility requirement (victim) : Provide a victims legal service *specify
All individuals affected by a crime can access the service to obtain legal guidance or advice regarding the process of applying for financial aid from the Victims of Crime Assistance Tribunal or filing for restitution and compensation from the perpetrator of the crime.
role of VLA (victims) : provide grants of legal assistance
victims can apply for grants of legal assistance in relation to intervention orders
Eligibility requirement (victim) : provide grants of legal assistance
There are strict eligibility requirements in relation to grants, whereby VLA will consider many factors, such as the merits of the matter and the means of the recipient.
grants for intervention orders for victims safety and protection no compensation
duty lawyer
a VLA lawyer who is at court (on duty) on a particular day to help people who come to court for a hearing. There is generally no prior communication with the accused.
magistrate and children’s court is free
income test
a financial threshold applied by VLA to determine whether a duty lawyer can represent an accused.
The threshold is met when the accused can show they have limited income e.g., their main source of income is through welfare provided by the government
means test
a financial threshold that VLA applies when individuals are seeking grants of legal assistance.
it considers a person’s income and assets (houses, cars, savings). If a person receives more than $360 a week in income after living expenses are deducted, the are not eligible under the means test
merits test
this test applies to receiving grants of legal assistance. It is a test based upon the legal matter and seriousness of the offence
e.g., VLA needs to consider is it in the interest of justice to fund the case - the extent of benefit or detriment to the accused or public in granting legal assistance.
strength of VLA duty lawyers (fairness): accused
- The provision of duty lawyers in the courts provides advice and assistance to various accused persons, ensuring a fair hearing for these individuals.
strengths of VLA (fairness ): victim
*double check
*The VLA is guided by the Victims Charter to
persons charged with criminal offences do not
uplift victims and ensure their rights set out in
the Charter are protected. The Charter is legally
binding which ensures VLA treats all victims fairly.
weakness of VLA (fairness): accused
VLA’s limited budget means it is only able to provide legal advice and representation to a small number of accused persons.
Many accused persons charged with criminal offences do not meet VLA’s eligibility criteria but cannot afford a private lawyer either.
As a result, VLA is limited in its ability to ensure all individuals can understand the case against them, participate in the criminal proceedings, and adequately present their case.
weakness of VLA (fairness): victim
Victims are not automatically provided with duty lawyers as there is a hierarchy which inhibits people lower on the hierarchy participating in legal system in a timely manner
strength of VLA (equality):
VLA provides free information on its website to all accused people and victims, regardless of personal characteristics, such as race, gender, or ethnicity. VLA ensures those who are disadvantaged are prioritised in receiving legal aid, thus promoting sub equality.
Victims are able to find out more information about their rights and access resources by calling VLA. This service promotes equality as VLA has staff that speak many languages, and the body organises a free interpreter if no one is able to speak the victim’s language. This ensures that victims are able to obtain information regardless of their language preferences and abilities.
weakness of VLA (equality)
The eligibility requirements for a duty lawyer or grants of legal assistance from VLA are strict, meaning very few individuals can gain access to free legal representation.
Whilst these requirements prioritise those most in need, others who are in the middle ground, whose circumstances are not considered dire enough to warrant help, are unable to receive legal assistance.
This limits equality as these individuals are not uplifted to receive the same treatment as those who can afford representation in the justice system.
strength of VLA (access)
- VLA provides free information on its website which is accessible to all accused people and victims.
- Duty lawyers and grants of legal assistance increase an accused individual’s access to the justice system and criminal proceedings, ensuring they can participate in the processes in an informed manner.
strength of VLA (access): victim
- Victims are supported through various services offered by VLA, such as Victims Legal Service and VLA’s commitment to upholding the Victims Charter, enabling victims to adequately participate in legal proceedings and receive just outcomes.
weakness of VLA (access)
- VLA does not provide advice about all types of matters, therefore, limiting accessibility to justice for parties involved in these legal matters.
- VLA information about the criminal justice system is readily available online. However, this may be inaccessible for those with low incomes, the homeless, or the elderly who may not have access to internet-connected devices or the knowledge to navigate such technologies to access legal information.
community legal centres
are independent, government
funded organisations that aim to provide free legal services for individuals including providing legal information, advice and ongoing assistance + representation. There are approximately 47 CLCs in Victoria.
CLCs have a reciprocal relationship with VLA - they work together to support individuals within the justice system.
generalist CLC
These are established in designated suburbs or Local Government Areas (LGAs) to serve that community.
specialist CLC
These are established to focus on a particular group of individuals in society that may be deemed vulnerable to receiving legal assistance. E.g., YouthLaw (for those under 25), Asylum Seeker Resource Centre, Seniors Rights Victoria
matters appropriate for CLC
family violence and related protection orders
parenting arrangements
tenancy and housing
fines and infringements
employment
legal services provided to Victorians by CLC
legal advice and support services
duty lawyer services in courts and tribunals
legal casework and representation services
legal information and referral services
services to communities including community legal education
holistic support services from social workers, financial counsellors, and other multidisciplinary professionals embedded in community legal centres
matters that CLC cannot assist with
CLCs will rarely become involved with assisting an accused for an indictable matter. CLCs receive their funding via VLA and are generally not equipped to provide support with complex and serious legal issues. CLCs cannot assist the accused when charged with:
- Any homicide related charge (murder, manslaughter, culpable driving)
- Sexual offences
- Aggravated assault
- Robbery (may depend on nature of the crime)
CLC eligibility criteria for assisting accused
Like VLA, CLCs also have a criteria for assisting an accused. They will generally consider the following factors:
- The type of legal matter the accused needs help with
- Whether other assistance is available (e.g., VLA)
- Whether the person has a good chance of success
- Whether the CLC has the resources to assist
CLC + accused (Free legal information)
- Online Information is available to all accused who can access the website
- Handbooks and pamphlets in relation to common legal issues e.g., fines, insurance, consumer law, contract law
CLC + accused (Ongoing casework)
Some CLCS will provide case work or assistance for an accused this involves ongoing representation and assistance; each CLC will have Its own eligibility requirements
CLC + accused (Legal advice and assistance)
- CLCs can provide face to face assistance with drafting letters and completing forms e.g., applying for grants of legal assistance, visa applications, intervention orders
- CLCs can also assist with wills, resolving neighbourhood disputes, employment contracts
CLC + victim (Legal Advice and Assistance:)
- Available via online, on the phone or face to face consultation
- Can assistance victims with matters such as filing out forms or to direct victims to the best organisation to assist with their matter e.g., VCAT or CAV
CLC + victim (Duty lawyer services:)
- Can assist victims with family violence protection orders
- Duty lawyers available at the Magistrate courts can give tree legal advice and representation on the day to family violence intervention order hearings on the day
CLC + victim (ongoing casework)
- Some CLCs will provide ongoing casework or assistance for a victim of crime; most of these will be in relation to an application for financial assistance or an application for a family violence intervention order.
CLC + victim (Basic legal information)
- Available to victims depending on the generalist or specialist category of the CLC
- Accessible via their online website, printed pamphlets or Law Handbook
strength of CLC fairness
- CLCs provide high quality, free legal support, and education to members of the community. This enables individuals to adequately participate in legal proceedings and present their cases in the best light, encouraging just and fair outcomes.
- Victims of crime are able to receive legal support from professionals, therefore easing the emotional stress of the trial. This can allow victims to better participate in court proceedings and provide accurate statements to the court, promoting a just and fair outcome.
weakness of CLC fairness
- CLCs often cannot provide legal representation in court. This means many accused individuals without financial means to gain legal representation must self-represent. Thus, this may impact the achievement of a fair trial if an individual cannot adequately participate in the legal proceedings.
- CLCs cannot provide assistance to all victims of crime, meaning some victims may not be able to participate in the justice system, limiting fairness.
strength of CLC equality
- CLCs often provide an interpreter service to ensure those from non-English speaking backgrounds can access legal assistance, promoting equality in the justice system.
- CLCs can provide specific advice to victims and cater to their individual circumstances, ensuring all people, regardless of personal characteristics such as race, gender, or disability, receive appropriate legal information.
For example, the Disability Discrimination Legal Service provides specialised services to those with a disability, ensuring these people are uplifted in the justice system and receive tailored services, promoting equality.
weakness of CLC equality
- The eligibility requirements for a duty lawyer or legal representation from a CLC are strict + prioritise characteristics. TF others who are in the middle ground will be unable to gain access to free legal representation. This limits equality as these individuals are not uplifted to receive the same treatment as those who can afford representation in the justice system.
*The lack of funding received by CLCs impedes their ability to take on many new cases. Therefore, many accused people and victims suffer without representation, as help may be unavailable when required due to the limited capacity of CLCs.
strength of CLC access
- CLCs provide free legal advice and information, enhancing access to, and understanding of, the legal system for all individuals in the community.
- Specialist CLCs can provide tailored advice about specific areas of law, increasing access to personalised assistance for certain legal matters.
- CLCs are located across Victoria and in some regional areas, with some providing legal assistance over the phone, promoting access to legal information and advice.
- Victims are able to receive free legal assistance and support from CLCs that is specific to their case, such as by assisting individuals with making applications and filing relevant documentation, promoting access to justice.
weakness of CLC access
- As CLCs usually provide assistance for relatively minor criminal matters, they do not promote access to resources for those charged with very serious criminal matters.
- majority of CLCs in Victoria are located in metropolitan Melbourne with few centres in rural Victoria, limiting access to legal assistance for those in remote areas.
- CLCs are limited in their ability to facilitate access to legal resources and support due to a lack of funding.
plea negotiations
a private discussion/s (or communications as they can occur via email) that occurs within the criminal justice system between the prosecution and the accused so that the accused can consider pleading to lesser charges and or fewer charges. The prosecution may also avoid trial.
Neg. occur on a ‘without prejudice basis’
plea negotiations (when)
Plea neg. can occur for either summary or indictable offences and can occur at any stage before sentencing
plea negotiations (who)
Plea neg. involves the prosecution and the accused (generally with their legal representative)
plea negotiations (how do they occur)
Via phone, email/letter or face to face although negotiations usually occur in writing.
Plea neg. usually begins when the accused (or their lawyer) indicates to the prosecution that they are willing to discuss the charges although either party can indicate to the other that they are prepared to consider negotiations.
parties involved in plea negotiations
Parties involved in plea neg. are the prosecution + the accused (legal rep)
lesser chargers
Lesser charges refers to the seriousness of the charges.
For example, an accused may wish to plead guilty to manslaughter rather than murder or assault rather than aggravated assault or dangerous driving causing death rather than culpable driving causing death
fewer charges
Fewer refers to the number of charges. The accused may wish to plead guilty to a reduced number of charges. For example, if they were charged with - theft, assault, robbery (3 charges), they may wish to negotiate 1 or 2 charges rather than 3.
appropriateness of plea charges: evidence
The strength and evidence of the prosecution’s case is not strong. There is a likely chance that they may not be able to prove their case beyond a reasonable doubt in front of a jury and therefore plea negotiations will still provide a conviction + sentencing
appropriateness of plea charges: accused willingness
The accused is willing to engage in negotiations with the prosecution and plead guilty
appropriateness of plea charges: witnesses
Witnesses in the case are reluctant or unwilling to give evidence at trial which may weaken the prosecution’s case.
Witnesses and/or victims will experience adverse consequences since a full trial which can lead to further trauma and stress.
purpose of plea negotiations: save cost time and resources
Saves the courts costs, time and resources: If a plea neg: is successful, a trial can be avoided or, ended more efficiently. This saves the use of the courts’ time, resources and costs associated with a prolonged trial.
purpose of plea negotiations: avoid further trauma, stress and inconvenience on victim, witnesses + family
Avoid further trauma, stress and inconvenience on victims, witnesses + families: an early resolution relieves victims and witnesses of the burden and trauma of having to give evidence in court + help victims move on from what has happened
purpose of plea negotiations : provide certainty of the outcome
by providing the opportunity for the accused to plead guilty, there is certainty in the outcome of the case (plea of guilty). This removes the potential for there to be an acquittal (found not guilty by the jury). The charges, however, must still reflect the accused’s wrongdoing.
inappropriateness of plea charges: evidence
The strength and evidence of the prosecution’s case is strong. There is a likely chance that they will be able to prove their case beyond a reasonable doubt in front of a jury
inappropriateness of plea charges: accused willingness
The accused is not willing to engage in negotiations with the prosecution and plead guilty
inappropriateness of plea charges: witnesses
Witnesses in the case are able or willing to give evidence at trial which may strengthen the prosecution’s case.
Witnesses and/or victims want to see justice achieved and accused to receive maximum punishment
strengths of plea: timely
Plea neg. allows criminal matters to be determined promptly. Most matters are determined through guilty pleas.
strengths plea: victims
Victims, witnesses and their families are saved from the trauma, stress and inconvenience of the trial process.
This can lead to secondary victimization.
strength of plea: cost
Plea negotiations provide substantial benefits to the community by saving the costs and resources required for a full hearing. This frees up the courts for other matters.
weakness of plea: self represented
A self-represented party (accused person) may feel pressured into accepting a deal even if the evidence is not strong (though strong safeguards are in place when pleas are negotiated)
weakness of plea: transparency
Negotiations do not need to be disclosed
and can be held privately. This lack of
transparency may make some people question the agreement or the reason why the prosecution decided to negotiate with the accused.
weakness of plea: cost
There may be a failure of one or both parties
to engage early on in a case to try to resolve
the charges. This can then result in costs and
resources being taken up by a case that could
have resolved much earlier.
