Unit 3 AOS 2 Flashcards
roles of parties in criminal law
solicitor definition
lawyer that does “behind the scenes”work, do not talk in court
Barrister
Specialist Lawyer, speaks in a court room, are solicitors first
Judges roles
-Ensuring rules of evidence and procedure are followed: decides wheather evidence is admissible and ensuring correct court procedure in order for equality of prosecution and accused to present their cases
-Deciding questions of law:
judges determine the relevant law (legislation) to be applied to the case, is also responsible to explain this to the jury
-deciding the sentance:
if accused is found guilty, judge is responsible for deciding relevant sentance, while doing this the judge must consider mitigating and aggrivating factors aswell as victim impact statements and early guilty pleas
magistrates roles
-Hear minor cases
-have smaller juristition
-have less power
-hear summary offences/ summary offences herd indictablly
-do commital proceedings
similarities between judges + magistrates
- act impartially
-manage trial/ hearing
-sentance an offender
-oversee outcomes
-are appointed not elected
to be a judge you need to
be experienced and under 70 years old
to be a magistrate
must have 8 years experience minimum, required to do further training
roles of magistrates + judges
-Act impartially
-Manage the trial or hearing
-decide or oversee the outcome
-sentance
what are the magistrates and judges roles by acting impartially
-anyone before a court has the right to an impartial judge/ magistrate
-judges/ magistrates must be impartial
apprehended bias
when a judge/ magistrate must not be apart of a certain case as they know the individual
roles of the magistrate/ jury in managing the trial or hearing
-act as an umpire of the case
-control +supervise proceedings. must be fair and accurate
-must make sure correct court procedure is followed
-asking questions of witnesses to clarify a point
-they are not an active participant in the proceeding
role of a magistrate in deciding or overssing the outcome
-role of determining guilt
-listen to both sides of a case
-if found guilty, can sentance at a later date
role of judges in deciding or overseeing the outcome
-does not determine guilt role is to make sure jury understands their role and proceedings
-explain points + summarise case for jury
-decide if will accept a majority verdict (11/12) or unanimous
role of magistrates and judges in sentancing
-guidelines for sentancing are under: sentancing act 1991 (vic)
-victim impact statement can be read aloud to impact sentancing
-if correct procedure is not upheld could be grounds for appeal
strengths of judges and magistrates
-judge and magistrate act as impartial umpire
-correct rules and procedure upheld by magistrates/ judges manage proceedings
-to a degree, judges can assist self represented parties to promote fairer proceedings
weaknesses of magistrates and judges
-humans have bias sometimes apprehended bias can be shown if a judge is tired
-lack of diversity amongst judges and magistrates, this can make some parties uncomfortable
-they cannot overly interfere in a case due to their independance
-judges cannot determine guilt or innocnece in a criminal trial even when most qualified to
who sits on a jury
12 people emparelled to a criminal jury, some emparell 13-15 people, judge wll ballot off people not needed
some people will be disqualified if
-are lawyers
-individuals who know the person
-individuals who have an occupation related to the accused or victim
challenge
the defence and prosecution can challenge juroros, by asking them of their occupations to see if they are eligable to be on the jury
challenge for cause
lawyers believe a juror is not acceptable to stand as a juror
selecting a jury legislation
under juries act 2000 (vic)
steps of the jury
- random selection from electoral role
- determination (see if people are able)
- Jurrrors are summoned to attend
- the jury pool (all jurors from 20-40ppl are pulled from pool)
- selection from jury panel (called by number / name)
main role of the jury
Making a decision on facts of the case: jury is responsible for giving a verdict, in accordance with law and evidence, must all agree or unanomous verdict 11/12 (after 6 hours of diliberation) unless murder, drug trafficiking
take part in deliberations:
jury responsible to take part in deliberations in jury room
put aside predjudice:
required to put aside any personal prejudice or preconceptions so they can return an unbiased and impartial verdict
being objective as a jury
-open mind + impartial- prejudice should be put aside
-guilt should be determined on facts of case
rose of jury to listen and remember evidence
- need to make sense of complicated cases
-concentration must be upheld
-attention must be on happenings in court, no further investigation can be done
understanding directions and summary role of jurors
-at end of trial judge provides jury directions, this is a summary of the case, an explination of points of law and discussion of key issues
-jury must pay attention to jury directions and ask questions
critisisms of the jury directions
jury directions are at end of trial, many may have questions during and will forget
role of jury to deliver a verdict
-enter the jury room and make decisions about facts of the case
-deliberations done without pressure, confidential kept between 12 jurors, no 13th person allowed
-aim is to reach unanimous verdict ( all in agreement) and possibly accept a majority verdict (all but one agree)
example of coerced jurror
smith vs western australia 2014, smith was a memeber of the jury and was physically coerced to agree to verdict
what the jury cannot do
-decide on anything other than facts presented before them in court
-give reason for decisions
-decide sanction
strengths of a jury
-random selection
-allows participation of public
-collective decision reduces area for bias
weaknesses of a jury
-uncertaintiny wheather verdict is due to jurors biases or not
-having a jury can slow down the case
-because jury has no legal training, it is argued if they are the right people to decide the verdict
-the process of choosing a jury and the right to challenge can mean the jury is not representative of the community
party control
both parties can dictate how the trial runs but is governed by courts’ rules
who can the prosecution be
- police
-dpp
roles of the prosecution
- disclose info to accused
-participate in trial + hearing
-make submissions about sentancing
Role of prosecution as disclosing info to the accused
-inform accused of evidence that will be used against them (including names and statements or witnesses)
-victorian laws reform made it that it is the prosecutions job to continously inform accused on this (even after concluded)
-must disclose if any prosecutions witnesses have previous convictions
Role of prosecution of participating in the trial and hearing
-opening summary= outlines prosecutions case to jury/ magistrate
-presents evidence (including calling and examining witnesses)
-cross examining witnesses by the accused
-making a closing adress= this can be only facts and no emotional language or adresses
role of prosecution to make submissions about sentancing
-must assist court in sentancing if accused ends up pleading guilty
role of the accused
- participate in trial and hearing
-make submissions about sentancing
role of the accused in participating in the trial or hearing
-present opening adress= sum evidence, cannot include irrelivent info
-presents evidence supporting their case
-cross examining prosecutions witnesses
-making closing adress
accused role to make submissions about sentancing
-must aim for lowest sentance possible
strengths of the roles of the accused and prosecution
-prosecutor must diclose info to accused
-both parties can represent their cases
-accused has no obligation to say/ do anything
weaknesses of the roles of the prosecutors and accused
-sometimes disclosure is delayed
-processes are hard to understand if self represented
-party control and right to silence may mean the truth does not come out
role of legal practitioner
-prepare + run cases on behalf of clinets
-duty to act honestly and not decieve or mislead court
key responsibilities of legal practitioners
-being prepared for proceedings
-take special care for some accused persons
-acting in best intrest of client
what does a barrister do in court
-makes appearences in court
-drafts court applications
-constructs and presents arguements in trial
what does a solicitor do in court
-communicates with clients
-drafts court applications
-manages legal files and documents
why should you have a lawyer
-proper rights are protected and understood
-for certain crimes it is innapropriate for the accused to cross examine witnesses ( if self representing)
-judges are limited in helping self representing parties
factors that impact justice
-cost factors
-time factors
-cultural factors
cost factors
-hiring of legal advisers
-VLA can provide funding for people to hire their own laywers but these grants must still meet the means and merit test
-could ask for pro bono
issues with costs
-solicitors change time based fees that are oftern several hundred dollars
-some fees come from court fees and filing of documents
how much do lawyers cost
in 2008, 4000 from court fees for magistrates court fees to 11000 for a five dat county court trial
self representation
-increase of self representation due to lack of funding to VLA and CLCs
-courts try to help self represented parties
costs and PoJS (of self represented parties)
fairness:
-may be too emotioanl to display impartiality
Equality:
-unrepresented parties may be up against experienced parties
Acess:
-may be more inclined to plead guilty
-not know their rights
Availibility of legal aid
8.5 million Australians will have a legal issue each year, less than half will be able to acess legal help
-less than 10% will be able to acess VLA
Adressing cost issues
use of commital proceedings:
-may be a waste of time
-ensourages self represented people to plead gulity
Time factors
“justice delayed is justice denied”
-preparing gor a case us time consuming: you need evidence, witnesses etc.
-when there are multiple witnesses (e.g bourke street) may extend to multiple years
-frustrating for accused as they may be held in custody on remand pending trial
facts of time factors
-most matters take more than 5 months to be resolved (vic)
-court wait times are longest in victoria, Tasmania and SA
Court delays
-the more complex the case the longer it will take
-even when ready for a trial, parties sometimes have to wait for a hearing date due to insufficient judges/ court rooms
-clowed by complexity of cases
Adressing delays
-encouraging early guilty pleas through sentance indications and plea negotiations
-invest in technology (video link)
-courts of the future
Courts of the future
Wyndham courts, embraces technologies, provide greater flexibility
POJs and time
Fairness:
-delays impact evidence
Equality:
-vulnerable people may find delays distressing
Acess:
-Delay cases acessibility of courts for all parties
cultural factor issues
-knowledge about legal system
-language difficulties
-cultural misunderstandings
-failures of legal system to account for disadvantage
Facts of cultural factors in australia
-in 2019-20 aboriginal young people (10-17) were almost 6x more likely to be processed by police for alleged crimes than their non aboriginal peers
Difficulties experienced by AITSIP people
-language barriers
-direct questioning(can be seen as disrespectful to awnser questions with yes/no and instead attempt to tell a long story)
-body lanuage=direct eye contact is disresepectful
-stress/ anxiety over incarceration
Koori court
-division of magistrates court, countycourt and childrens court
-for aboriginal people charged with criminal offences who plead guilty and consent to koori court
-less formal, involve talking around a table with koori elders
-11 adult koori courts +12 childrens in victoria
-used for sentancing only
issues with koori court
-extreme backlog
-accused must plead guilty/ intend to (only exception is childrens court)
-language barriers
language barriers definition
when born overseas or speak another language it is hard to stand trial
-accused may be unaware of their rights
-interpreters can be provided but there are larger delays
-acess interpreters vary from court to court
POJs and cultural factors and use of interpreters
Fairness:
-person who cannot seek communication may be treated diffrently
-everyone from a non english backgrounf has right to an interpreter
Acess:
-unless given knowlegdge about the system by an interpreter, people of diffrent cultural backgrounds will find it hard to process and understand legal rights
-people may also come from diffent countries and not undeerstand courts
Sanction time line
-crime occurs
-investigation (police ect)
-charges laid
-commital hearing
-trial
-guilty
-sentancing
Sanctions
penalities or other means of enforcement to encourage law following and discourage breaking the law
once a person if found guilty, they need a sanction
-Judge/ magistrate determines this
-sentancing act 1991 (vic), gives power of court to impose sanctions
-jusges and magistrates must follow guide lines of these sanctions
Sentancing act 1991 and fairness
outlines procedures of sentancing if followed, upholds fair process and imposing sanctions
How do sanctions display equality
Outlining maximum sentances and maximum sentances there is consistent decision making across diffrent courts and judges
how do sanctions display Acess
Publishing sanctions in legislation acts as a preventative to crime, ensuring consiquenses are known
Types of sanctions
-Imprisonment with conviction
-court secure treatment order with conviction
-drug and alcohol treatment order with conviction
-youth justice centre order with conviction
-youth residential centre order with conviction
-community correction order (cco) with/without conviction
-fine with/ without conviction
-Adjournment with conviction
-discharge with conviction
-adjournment without conviction
-dismissal without conviction
Imrisonment with conviction
record conviction and order offenderr to serve time in prison
court secure treatment order with conviction
record conviction, order offender to be detained and treated in health facility (e.g hospital) as a security patient
Drug and alcohol treatment order with conviction
record conviction and order offeneder to undertake judicially supervised drug/alcohol treatment program
drug/ alcohol treatment order with conviction can only be administered if
-in drug court division of magistrates court
-county court if person pleads guilty and court is satisfied that offender persued crime because of drugs/ alcohol
youth justice centre order with convictions
-if offender is aged 15-20 years
-only at the time of sentancing can a conviction be given
-records conviction and orders offender to be detained in a youth residential centre
community correction order (cco) with/out convictions
with/ without recording a conviction, make a community corrections order, the order will be made with certain conditions attached to it
fine with/ without conviction
with/ without conviction order offender to pay a fine, sum of money
Adjournment
taking a break
Adjournment with conviction
record a conviction and order the releade of offender on adjournment with conditions, if they breach conditions, will be re-sentanced
discharge with conviction
record conviction and order dishcharge of offender, no further penalty will be imposed
dismissal without convitction
without conviction, orders dismissal of change for offence. change may be proven but person is released and no record of charge
Adjournment without conviction
without recording conviction, order release of offender with conditions, if broken, re sentanced
purposes of sanctions
-rehabilitation
-punishment
-deterrance
-denunciation
-protection
rehabilitation
adresses underlying causes of offending
-change behaviour through:
-programs that help keep families in touch
-tourch program= artworks for prisoners
punishment
imposition of an undesirable outcome because of an offence, made to be retributive
Detterance
discouraging people from commiting similar crimes
General detterance
general=court seeks to deter others from commiting a crime, particular in extremely violent crimes
specific detterance
seeks to discourage a particular offender from criminal activity, is very highly thought about if re offended
Denunciation
dissaproval of court, given to show that behaviour is dissaproved of
protection
ensure community is safe from further harm that can be caused by the offender
Fine definition
monatary penalty paid by an offender to the court
-statuetes specifiy maximum fines
legislation of fines
penalties expressed in levels, not dollards, 2 is the highest and 12 is lowest
What happens if a fine isnt paid
-court can alter sanction or discharge if circumstance change (e.g sanction is now volunteer work)
-if offender refuses= Warning notices, warrants to search and imprisonment or community services can be issued
Limitations of fines
-do not protect community
-do not rehabilitate offender
weather a fine achieves key purposes depends on
-finacial position of offender
-wheather max fine for the offence is sufficient to deter
-wheather a more appropriate sanction is available
purposes of fines
punishment= seriousness of offence should be reflected in size of fine
Detterance= discourage both offender and community from commiting a certain act (specific and general)
denunciation= sends message to public that this behaviour is not acceptable
Sentancing factors
4 main features judge/ magistrate needs to take into account while sentancing:
-Aggravating factors
-Mitigating factors
-guilty pleas
-impact of crime on victims (e.g victim impact sentances)
Aggravating factors
cricumstances about offender that tend to increase the culpability and the sentance
Examples of Aggravating factors
-use of violence, explosives or weapons
-offence done infront of children
-prior convictions
mitigating factors
decrease offencers culpability and lead to reduced sentances
Examples of mitigating factors
-offender showing remorse
-offender has no prior convictions
-offender acting under duress
Gulity pleas
-mitigating factor
-under the sentancing act.
-limits resources and time
-persuades people to do this as it leads to smaller sentances
Victim impact statements
-allow victims a say in sentancing process
-court must consider impact on victim
-displays injury, loss or damadge felt by victim
Community Corrections Order
CCO= non custodial, supervised sentance served on community
-intended to be flexible
-allow them to undergo treatment
-can be administered for 2 years in magistrates (for 1 offence) and no more than 5 for all courts
CCO’s can be combined with
-fines
-imprisonment, where CCO begins once out of jail
Eligability of CCO’s
only if offender has been convicted/ guilty of a offence of more than 5 units
-court must be satisfied with CCO
Conditions of a CCO
-must not leave victoria without permission
-must not commita another offence punishable by imprisonment during period of order
-must report to and recieve visits from a CC officer
what other additional condition do courts need to impose
-unpaid community work
-treatment and rehabilitation
-curfew
what happens if offender doesnt comply
-has to let supervisor know or= could commit crime by doing this
-court could also vary conditions
-cancel cco and impose no further order
sentancing purposes of CCO’s
-can achieve all purposes, depending on circumstances of offender
-Detterance, rehabilitation and denunciation are oftern purposes of a CCO but protection and punishment can be achieved aswell
imprisonment
removed from society and have to spend time in prison, loosing freedom and liberty
Parole
Conditional release of offender after a maximum period has been served
Non parole
A minimum time in which someone cannot be parolled (1-2 yrs)
example of a level of imprisonment
1= murder
-only go from 1-9 and 1 is worst, 2 is least
concurrent sentances
sentance to be served at the same time as one or more sentances (e.g given 6 months and 6 more months, served at the same time= 6 in total)
Cummulative sentancing
where 2 sanctions are imposed, and one is served after another
Cummulative offences are given for
-certain serious offences (arson)
-offence of prisoner-escape offence
-offence commited on parole or bail
Indefinate sentances
Only serious crimes herd by county court or supreme
Court can only impose indefinate sentances because of
-their charicter
- past history
-any special circumstances
If an individual prevouosly given a indefinate sentance is deemed safe for the community
must enter a 5 year rehab program
Sentancing purposes of Imprisonment
-punishment
-protection
-detterance
-denunciation
key responsibilities of the accused and prosecution in a legal trial
Accused:
-choosing legal representation
-attending court
Prosecution:
-responsible for bringing the case to court
Need for legal practitioners in a criminal case
legal practitioners present their cases to each respective side, this includes the roles of:
-presenting the facts, what witnesses will be used etc.
-representing intrests
-adhering to evidence of rules and procedure
-explaining the law and options (legal practitioners for the accused)
weaknesses of legal practitioners
-extrememly costly
-if cannot afford the accused will need to be held to the responsibilites of a legal practitioner
Purposes of sanctions
Rehabilitation= focuses on assisting the offender in changing their attitudes and behaviour so they are ultamately able to take their place in society
Punishment= aims to punish offender to an extent, while allowing victim and community to feel there has been retribution
Detterance= sanction aims to deter the offender and others from comming a crime again:
-general=sanction aims to discourgae the community
-specific=sanction aims to discorage individual
Denunciation=aims to accentuate and express courts and societys disaproval of behaviour
Protection=
physically protect wider community physically from offender
core conditions in a CCO
conditions that must be chosen for an offender
examples:
-must not commit another offence
-notify of change of adress
-cannot leave victoria without permission
additional condtions in a CCO
(atleast one) tailored to peoples needs:
-unpaid community work
-area exclusions
-non accosiation with certain people
CCO’s cannot be eligable for
catagories 1 or 2 offences
if someone breaks CCO
-change
-impose (diffrent sanction)
-cancel
