UNIT 3- aos1 Flashcards
describe criminal justice system
A set of processes and institutions used to investigate and determine criminal cases
Purpose:
-decide whether an accused is guilty of an offence
-impose a sanction in cases where an accused has been found guilty or pleaded guilty to committing an offence
describe summary offences
Summary offences are minor criminal offences usually heard in the Magistrate’s court where there is no option for trial by jury. Most summary offences are specified in legislation like the Summary Offences Act 1966, such as drink driving offences and common assault. Summary offences can be heard without the accused being present and can be prosecuted by Victoria police
describe indictable offences
Indictable offences are criminal acts that are serious in nature such as arson or murder. Indictable offences are generally heard by a judge and jury in the County and Supreme court when a plea of not guilty is entered. The jury must determine whether the accused is guilty or not guilty beyond reasonable doubt, and then an appropriate sentence is administered by the judge or justice. Most indictable offences are prosecuted by the Office of Public Prosecutions.
indictable offences heard summarily
These are serious offences, but they can be heard in the Magistrate’s court as if they were minor offences. Statute determines whether an indictable offence can be dealt with as a summary offence. e.g. Schedule 2 of the Criminal Procedure Act 2009 (vic) lists a number of these offences, including motor vehicle theft. The accused will usually choose to have an offence heard summarily, mainly because it is quicker and cheaper to hear the case in the Mag court and the maximum penalty that can be handed down is less than if it were an indictable offence. The Magistrate’s court can only impose a max 2 years imprisonment for a single offence, and max 5 years imprisonment for multiple offences. However, both the accused as well as the court must agree that the offence is appropriate to be heard summarily.
define the burden of proof
The obligation of a party to prove the facts of a case. The burden of proof typically rests with the party who initiates the action, the plaintiff in a civil dispute and the prosecution in a criminal case.
explain the burden of proof
The burden of proof refers to which party is responsible for proving the facts of a case. In criminal cases, this responsibility lies with the prosecution. The rationale behind this is that the state possesses considerable resources and authority, which can create an imbalance of power compared to an individual defendant. By requiring the prosecution to establish guilt, the legal system seeks to address this power disparity and safeguard against the potential misuse of state resources against individuals. Additionally, the burden of proof reinforces the principle of presumption of innocence. In some cases, the burden of proof can be reversed, such as when the accused pleads a defense of mental impairment. Furthermore, in some drug possession cases, the accused may be required to prove the drugs were not in their possession.
define the standard of proof
The degree to which the facts of a case must be proven in court. The standard of proof applicable in a criminal proceeding is ‘beyond reasonable doubt’.
explain the standard of proof
The term refers to the level of certainty or strength of evidence required to prove a case. In criminal cases, the prosecution must establish the defendant’s guilt beyond a reasonable doubt. This standard means that no reasonable doubt can exist based on the evidence presented. While jurors or a magistrate may have fanciful or imaginary doubts, such doubts do not affect the verdict. To prove guilt in a crime, there must be no other logical or reasonable conclusion than that the accused is guilty. Indictable offenses are tried in the County or Supreme Court, where a jury must find the defendant guilty beyond a reasonable doubt. In contrast, summary offenses are heard in the Magistrates’ Court, where a magistrate determines guilt. If the burden of proof is on the accused, the standard shifts to the balance of probabilities. The standard of proof is vital for safeguarding individuals from wrongful convictions and unjust treatment. It embodies the principle that it is preferable to allow a guilty person to go free than to convict an innocent one. This high standard protects the rights of the accused and ensures that judges and juries make informed, unbiased decisions.
define the presumption of innocence
The right for all accused persons to be presumed innocent until proven otherwise beyond reasonable doubt. The presumption of innocence helps to uphold fairness as a principle of justice because it means the accused is not required to prove their innocence.
explain the presumption of innocence
The presumption of innocence is one of the most important principles in our criminal justice system and of the rule of law. It means that if a person is accused of committing a crime, they are considered innocent until proven otherwise. The presumption of innocence is an old common law right which is now protected by the Charter of Human Rights and Responsibilities Act 2006. One way in which this is upheld is by imposing a high standard of proof and imposing the burden of proof on the prosecution, ensuring accused people do NOT have to prove they are innocent. The presumption of innocence is essential for safeguarding individuals’ rights, preventing unjust deprivation of freedom or reputation based on unproven accusations. By placing the burden of proof on the prosecution, this principle acts as a safeguard against state power and helps avoid wrongful convictions. It embodies the principle that it is more just for a guilty person to go free than for an innocent person to be wrongfully punished.
list the rights of an accused
- right to be tried without unreasonable delay
- right to silence
- right to trial by jury
Explain the right to be tried without unreasonable delay (accused)
The Human Rights Charter ensures that individuals charged with a criminal offense are entitled to be tried without unreasonable delay. This right applies to everyone, regardless of past convictions or personal characteristics, and aims to have charges heard in a timely manner.
While some delays may occur, they must be reasonable based on factors like the complexity of the case. For instance, a case involving multiple crime scenes and accused individuals may justifiably require more preparation time compared to one with a single incident and numerous witnesses.
Section 21 of the Charter supports this right, stating that anyone arrested for a criminal charge has the right to a timely trial. This safeguards the basic rights to liberty and security and upholds the presumption of innocence, ensuring individuals are not held for an unreasonable length of time while awaiting trial.
The Human Rights Charter requires that an accused child, defined as anyone under 18, be brought to trial as quickly as possible. This requirement places a greater burden on the prosecution because of the significant impact a trial can have on a child’s well-being.
explain the right to silence (accused)
The “right to silence” protects an accused person from being compelled to speak or provide information in legal situations. Key protections include:
- The right to refuse to answer questions during a criminal investigation.
- The right not to give evidence at trial or to present a defense or witnesses.
Common law supports this right by establishing that:
- An accused person can remain silent without it being assumed they are guilty.
- No negative implications can be drawn from an accused introducing a defense later or answering some questions but not others.
Statutory law also reinforces this right, such as Section 89 of the Evidence Act 2008 (VIC), which states that unfavorable inferences cannot stem from a person’s silence.
Judges must instruct juries not to conclude guilt based on an accused person’s choice to remain silent or refrain from providing evidence.
Exceptions exist; for example, if police suspect someone has committed or is about to commit a crime, or may be able to assist in the investigation of an indictable offence, they may require the person to provide their name and address.
explain the right to trial by jury (accused)
A trial by jury is a legal process where a person’s peers decide the outcome of a case, specifically determining guilt in criminal cases. This right dates back to before the Magna Carta of 1215, which asserted that no free man can be imprisoned without a lawful judgment by peers. The jury system allows for community participation and ensures laws are applied according to community standards.
In Victoria, the right to a jury trial is partially protected by statute law for state indictable offenses and by the Australian Constitution for Commonwealth indictable offenses.
State Indictable Offences
The Juries Act 2000 (Vic) requires that a jury for indictable offenses be made up of 12 members, with the possibility of up to three additional jurors, due to trial length which can help avoid any disruptions such as potential illness. Jurors must decide on the accused’s guilt beyond a reasonable doubt.
Commonwealth Indictable Offences
Section 80 of the Australian Constitution guarantees the right to a jury trial for anyone charged with a Commonwealth indictable offense, which includes serious crimes like terrorism. This right cannot be waived by the accused. However, this right is limited as it only applies to Commonwealth offenses, as most indictable offenses fall under state jurisdiction, and the Commonwealth Parliament determines which offenses are indictable.
list the rights of the victim
-Right to give evidence using alternative arrangements
-Right to be informed about the proceedings
-Right to be informed of the likely release date of the offender
explain the right to give evidence using alternative arrangements (victim)
In some criminal cases, victims may also act as witnesses and need to provide evidence for the prosecution. The Criminal Procedure Act (2009) in Victoria includes provisions to protect certain witnesses by allowing for alternative arrangements when giving evidence.
Cases Allowing Alternative Arrangements
The court may direct these arrangements for witnesses in cases involving:
- Sexual offenses
- Family violence offenses
- Obscene or threatening language or behavior in public
- Sexual exposure in public
These arrangements can be implemented at any stage of the proceeding, including appeals.
Types of Alternative Arrangements
- Witnesses may give evidence from a location outside the courtroom using closed-circuit television, ensuring communication with the courtroom. This evidence is recorded.
- Screens can be placed to shield the witness from viewing the accused.
- Witnesses may choose a support person to be with them during their testimony, subject to court approval.
- Only approved individuals may remain in the courtroom while the witness testifies.
- Legal practitioners may not wear formal robes and may be required to remain seated while questioning witnesses.
In cases where the witness is a complainant for a sexual or family violence offense, the court must use closed-circuit television unless the prosecution requests otherwise, and the complainant chooses to testify in the courtroom with full awareness of their options.
These arrangements aim to reduce the trauma and intimidation that witnesses may face, particularly in sensitive cases involving sexual offenses and family violence.
explain the right to be informed about the proceedings (victim)
The Victim’s Charter recognizes that individuals affected by crime have the right to receive important information about legal proceedings and the criminal justice system. It requires investigatory and prosecuting agencies, as well as victim services, to provide timely information on support services, compensation entitlements, and legal assistance.
Investigatory agencies must keep victims informed about the progress of investigations, unless doing so could jeopardize the case or if the victim chooses not to receive updates.
Once a prosecution starts, victims should be informed about:
- The charges against the accused
- The reasons if no charges are filed
- How to find the date, time, and location of hearings
- The outcome of the proceedings and any sentence imposed
- Details of any appeals
Victims also have the right to attend court hearings. These provisions ensure that victims can stay updated on cases that impact them and seek justice.
explain the right to be informed of the likely release date of the offender (victim)
Victims of a criminal act of violence, such as rape, sexual offenses, kidnapping, and stalking, can apply to be included in the Victims Register. Registered individuals receive important information about imprisoned offenders, including notification of their parole release at least 14 days in advance. They also have the right to know the offender’s sentence length, be informed of any prison escapes, and submit input regarding potential parole releases.
define fairness
Fairness: the principle that all people can participate in the justice system and its processes should be impartial and open. The right to a fair trial or hearing is a right protected by the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Human Rights Charter).
explain fairness
Impartial Processes
Fairness in the judicial system requires that courts and personnel remain independent and impartial. This means avoiding bias toward either party, with decisions based solely on facts and law. Apprehended bias occurs when a reasonable person might think that a judge or jury member could lack impartiality, such as in cases where a judge is friends with a witness. In such situations, the judge may need to recuse themselves. Impartiality also applies beyond the courtroom; police and court personnel should act without bias when assisting the accused.
Open Processes
Open processes are crucial for fairness in the criminal justice system. Transparency allows the public to scrutinize the actions and decisions of judicial institutions. Public hearings and accessible court judgments help ensure that justice is visible and accountable. However, there are times when courts may need to be closed to protect victims or witnesses, such as redacting the name of a child victim.
Participation
Fairness also includes ensuring participation in the justice system, particularly for the accused and victims. Key elements include:
- Right to know the case: The accused should understand the facts and evidence presented against them.
- Ability to prepare a defense: The accused must have adequate time and resources to prepare and present their case, including the right to call witnesses.
- Access to legal representation: The accused should be able to defend themselves or seek legal assistance, including eligibility for legal aid if necessary.
Additional fairness features include the right to silence and the presumption of innocence.
define equality
All people engaging with the justice system and its processes should be treated in the same way. 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.
explain equality
The Humans Rights Charter protects equality by stating that every person:
- is equal before the law
- is entitled to equal protection of the law without discrimination
- has the right to equal and effective protection against discrimination
The first aspect of equality is that individuals must be treated the same, known as “formal equality.” This means everyone receives identical support regardless of personal characteristics like race, religion, gender identity, or age. Essentially, a “one size fits all” approach is applied, with the same processes for every case. For example, a person seeking advice from a community legal center (CLC) would get the same information as anyone else, regardless of their financial situation or vulnerability.
Conversely, the second element of equality recognizes that treating everyone the same can lead to disparities. This is called “substantive equality,” which acknowledges that unique circumstances may require special measures to avoid disadvantages. For instance, if an accused person does not speak English, applying only formal equality would disadvantage them, as court proceedings would proceed without an interpreter or translated information.
To address such disadvantages, measures like providing an interpreter and ensuring accessible information in the accused’s language should be implemented. While there is no exhaustive list of necessary measures, they should apply across all facets of the criminal justice system, not just during the trial.
- Interpreters: Needed for individuals who do not understand or communicate in English.
- Providing Information Differently: Information may need to be shared in an individual’s native language or communicated clearly and slowly, particularly for those from diverse backgrounds or for children.
- Changes to Court Processes: Adjustments to court settings may be required. For example, a young accused person might benefit from a less formal courtroom. Vulnerable witnesses may also need special arrangements to reduce trauma during their testimony.
- Different Oaths and Affirmations: Individuals can use various religious texts for oaths, or choose to affirm truth without referencing religion.
- Cultural Accommodations: Changes may be necessary to avoid disadvantaging people from specific cultures, such as those from First Nations who may avoid direct eye contact, which can be misinterpreted by others.
- Breaks and Adjournments: Flexibility during a trial may be needed, particularly for individuals with disabilities or for children, who may require more frequent breaks.
define access
Access: is defined by an individual’s understanding of their legal rights and ability to pursue their case. Access is the principle that all people should be able to engage with the justice system and its processes on an informed basis.
explain access
Engagement with the Justice System
To engage with the justice system, individuals need the ability to participate effectively, which includes:
- Physical Access: People must be able to access courts and legal services. This challenge is greater for those in rural areas or with disabilities.
- Technological Access: If services are offered online, individuals must have the means to navigate these platforms, which can be difficult for those lacking technological skills or access.
- Financial Access: No one should be denied a defense due to financial constraints, particularly the accused who need funds to hire legal representation.
- No Delays: Cases should be resolved promptly to ensure effective engagement with the system.
Informed Engagement
Individuals should also engage on an informed basis, meaning they need to:
- Understand their legal rights and processes.
- Have sufficient information to make informed decisions (e.g., whether to plead guilty).
Challenges exist for those who do not speak English well, First Nations peoples, children, and individuals from diverse backgrounds. Key factors to support informed engagement include:
- Education: Higher education levels often lead to better understanding of legal rights and processes.
- Information: Access to clear information about court processes is essential. This should come from courts and legal agencies and be available both online and in person.
- Legal and Support Services: Free access to legal support can enhance understanding of rights and legal procedures.
- Legal Representation: Having a lawyer significantly improves an individual’s access to justice.
While access to the justice system does not guarantee desired outcomes, it ensures individuals can engage with available processes and institutions.
explain Victorian Legal Aid
Navigating the criminal justice system can be challenging without legal assistance. Accused individuals often lack experience with the system, may not understand their rights, and can find key concepts, like the burden of proof, confusing. Victims face similar difficulties, especially if they are traumatized by the crime.
Although everyone has the right to hire a lawyer, some may be unable to afford one. The High Court has ruled that if someone is charged with a serious indictable offense and lacks representation through no fault of their own, they should be granted the opportunity to seek legal help to ensure a fair trial. However, this right does not extend to all accused individuals or to victims.
For those who cannot afford a lawyer, organizations like Victoria Legal Aid (VLA) and Victorian community legal centres (CLCs) may provide assistance. VLA is a government agency that offers free legal information, advice, and representation to those in need, focusing on individuals who lack other options.
VLA strives for a fair and inclusive society where individuals can access legal support. In the 2021-2022 financial year, VLA assisted 80,547 clients, primarily funded by the Commonwealth and Victorian Governments.
Key objectives include:
- Providing legal aid effectively and efficiently.
- Ensuring equitable access to legal aid throughout Victoria.
- Enhancing community access to justice.
- Developing innovative legal aid solutions to minimize the need for individual services.
- Coordinating legal assistance information to meet community needs.
Types of assistance for accused people (VLA)
Free Legal Information:
The VLA (Victorian Legal Aid) website provides free legal information for all Victorians about the law, court processes, and basic legal principles. This includes:
- Publications and resources like booklets and fact sheets.
- A public law library with books, cases, and journals.
- Access to VLA officers via phone or the Legal Help Chat function.
Assistance is available in multiple languages for all accused individuals.
Free Legal Advice (including Help Before Court service):
VLA offers legal advice in person, by video conference, or over the phone, focusing on court proceedings or applicable laws.
The Help Before Court service is for those charged with criminal offenses in the Magistrates’ Court (or Children’s Court). If the court date is more than six days away, VLA may arrange legal advice from a lawyer or a duty lawyer for the court day. Representation in court may also be provided.
Access to this advice depends on the accused’s income, prioritizing those in greatest need. This service is not available for higher court indictable offenses or committal proceedings.
Duty Lawyer Services:
A duty lawyer is available in court on specific days to assist individuals attending hearings. They provide information about court processes, legal advice, or representation for accused individuals. They can also arrange adjournments for cases to be handled later by a lawyer.
Duty lawyers prioritize individuals in custody and First Nations peoples, who do not need to meet eligibility criteria. Services are limited to the Magistrates’ Court and Children’s Court and do not cover indictable offence trials or committal proceedings.
- Fact sheets outlining legal information are available for anyone charged with an offence.
- Legal advice is available to those who pass the income test and are facing simple charges. Individuals in custody receive priority and bypass this test.
- Legal representation requires meeting the income test and facing significant charges or belonging to prioritised groups, such as those in custody, with disabilities, experiencing homelessness, or with limited English proficiency.
Grants of Legal Assistance:
The Victorian Legal Aid (VLA) may offer grants to individuals who cannot afford legal representation. This support can assist with dispute resolution, legal document preparation, and court representation. VLA may assign a lawyer or arrange a private lawyer from its panel.
Eligibility for grants is based on strict guidelines to ensure assistance goes to those most in need. A means test is required, and VLA also considers the broader benefits or detriments that may arise from granting assistance.
explain duty lawyers and the income test
An accused meets the income test if they present a current Centrelink benefit card or pensioner concession card to the duty lawyer. If they lack these, they can still qualify by signing a declaration of limited income (e.g., income from welfare or after-tax income below a specified amount). Duty lawyers are not available in the County Court or the Supreme Court, and VLA has noted that their services are limited, often restricting the time spent with clients.
define Victorian Legal Aid
A government agency that provides free legal advice to all members of the community and low-cost or no-cost legal representation to some people who cannot afford a lawyer.
Explain grant of legal assistance- the means test
The means test differs from the income test. The income test is for individuals needing advice or representation from a duty lawyer on a specific day, while the means test is for those requesting legal assistance for case preparation or court representation.
The means test assesses a person’s income and assets, such as homes or cars. For example, if an accused’s income exceeds $360 per week after living expenses, they do not qualify.
If Victorian Legal Aid (VLA) denies legal assistance, the person can request a review by an independent reviewer, and this decision can be appealed to the Supreme Court of Victoria.
explain ‘other tests’ VLA
To qualify for legal assistance, an accused person must meet several criteria beyond just a means test, depending on the type and severity of the offense. The Victorian Legal Aid (VLA) assesses factors such as the merits of the case and whether funding serves the interests of justice.
This process is complex and requires more than just proof of financial need. Many individuals who do not qualify for assistance from VLA also cannot afford legal representation, often referred to as the “missing middle.” In its 2021-22 annual report, VLA highlighted its ongoing discussions with governments for additional funding to meet the increasing demand for legal assistance.
types of assistance for victims of crime VLA
Victims of crime can access different legal aid from VLA compared to accused individuals, as they are not parties in criminal cases. However, they still need help in several areas:
- Navigating the criminal justice system: Victims require support in understanding their rights, processes, and options for participation, including guidance on plea negotiations.
- Protection orders: They may need assistance obtaining family violence intervention orders and personal safety intervention orders.
-
Financial assistance or compensation: Victims can seek compensation through:
- The Victims of Crime Financial Assistance Scheme, providing government-funded support for violent crime victims.
- Compensation and restitution orders from courts, which mandate offenders to pay for losses or return stolen property.
- Civil action to sue an offender for damages.
- Identifying additional support: This includes finding social or mental health services.
Free Legal Information
VLA’s website offers free legal information about laws, court processes, and financial assistance. In 2023, VLA launched the Victims Legal Service, providing information and advice to victims via a helpline, with multilingual support.
Free Legal Advice
The Victims Legal Service also offers free legal advice on applying for financial assistance or compensation from offenders. This support is limited to financial matters only.
Duty Lawyer Services
VLA provides duty lawyers in the Magistrates’ Court to assist victims seeking personal safety intervention orders. These lawyers offer guidance on self-representation and may represent victims in court on the day of the hearing. Priority is given to those most in need, particularly children and adults with disabilities.
Grants of Legal Assistance
VLA may grant legal assistance to victims applying for protection orders. Assistance can be provided by VLA lawyers or private lawyers from a designated panel. Generally, grants cannot be used to sue the accused or represent victims in criminal cases. VLA evaluates requests based on a reasonableness test, considering the potential benefits or disadvantages to individuals and the public.
Strengths of VLA
Free legal information is available on the VLA website through its online chat and resources. This information is accessible to everyone, including victims, regardless of their income or financial means. It covers topics such as court processes, the rights of both accused persons and victims, and basic legal principles.
Free legal advice and assistance, provided by duty lawyers and through grants of legal assistance, is available for eligible individuals who are in the greatest need. This includes people in custody and First Nations individuals, with a focus on prioritizing the most vulnerable members of our society.
Additionally, legal information is offered in over 30 languages. The VLA website also mentions that its staff members speak various languages and can arrange for a free interpreter when needed.
VLA uses online tools to provide legal information and legal advice, including its online chat, telephone services and website. This means that information and advice is also available to people who live in regional, rural and remote areas, not just those who live in or near the city.
weaknesses of VLA
The free legal information available on the VLA’s website may not be sufficient for certain individuals, particularly those charged with an indictable offence who are unable to access legal services through other means.
VLA does not have unlimited resources, so it must apply criteria to ensure that its funding is used appropriately and targeted toward those who need it most. It is possible that some individuals who cannot afford a lawyer may also not qualify for legal assistance, leaving them without representation and unable to defend themselves effectively. Additionally, victims of crime do not receive assistance such as legal representation when giving evidence.
The ability of VLA to meet service demand depends, among other factors, on continued funding. An increase in demand and/or budget constraints could result in fewer people being eligible for legal aid.
The extent to which VLA is able to help people may depend on whether accused people and victims of crime are aware of its existence and/or have the technological means to access free information.
define community legal centres
An independent community organisation that provides free legal services to people who are unable to pay for those services. Some are generalist CLCs and some are specialist CLCs
explain community legal centre
Community legal centres (CLCs) are independent organizations in Australia that provide free legal services, including advice, information, and representation, to those who might otherwise lack access to legal assistance.
There are two types of CLCs:
- Generalist CLCs offer a broad range of services in specific geographical areas, like Barwon Community Legal Service Inc. and Moonee Valley Legal Service.
- Specialist CLCs focus on particular groups or areas of law, such as YouthLaw, which serves individuals under 25.
In Victoria, there are around 46 CLCs, supported by the Federation of Community Legal Services Inc., which advocates for justice access for disadvantaged populations. CLCs often collaborate with Victoria Legal Aid (VLA), assisting individuals in accessing VLA’s services and vice versa.
Community legal centres (CLCs) offer individuals facing legal charges crucial information, advice, and ongoing support. They also educate the public about legal rights and advocate for reforms to address unfair laws and practices.
Funding of CLCs
In Victoria, CLCs receive funding from Victoria Legal Aid (VLA) as well as grants from government and private sources. Many CLC staff are volunteers. However, funding remains an issue due to high demand. The Federation of Community Legal Centres reported a growing “service gap,” with many people needing legal assistance. For example, the Southside Justice CLC turned away half of those seeking help in the past year due to insufficient staff and challenges in retaining qualified employees.
CLCs prioritize assistance for those most in need, including individuals with disabilities, refugees, domestic violence survivors, the homeless, young people, and those who cannot afford a lawyer. They also support victims of crime and offer interpreter services.
type of assistance for accused people CLCs
Basic Legal Information
Community Legal Centres (CLCs) provide essential legal information and education for everyday situations. Some resources are available online, such as the Barwon Community Legal Centre, which offers information on criminal offenses. The Fitzroy Legal Service has created The Law Handbook, an online and print resource that addresses legal matters, including fines.
Legal Advice and Assistance
CLCs provide legal advice and assistance with tasks like drafting letters and completing forms. They can also help individuals apply for legal assistance from Victoria Legal Aid (VLA). Some CLCs, like the Peninsula Community Legal Service, offer walk-in legal advice during evening hours, staffed by volunteer lawyers. The Whittlesea Community Connections Community Legal Centre visits public areas with its coffee van, ‘Express Legal,’ to discuss legal concerns informally.
Ongoing Casework
Some CLCs offer ongoing casework and legal representation for individuals facing charges. Each centre has specific eligibility criteria, and many do not assist with indictable offenses.
Each Community Legal Centre (CLC) has specific eligibility criteria for assisting individuals accused of crimes, along with limitations on the support they can provide. CLCs typically consider factors such as:
- The type of legal issue.
- Availability of other assistance (e.g., Victoria Legal Aid).
- The likelihood of success.
- The CLC’s capacity to help.
Many CLCs focus only on minor criminal matters; for example, St Kilda Legal Service does not assist with indictable offenses.
Types of assistance for victims of crime CLCs
Victims of crime may need assistance with navigating the criminal justice system, applying for family violence intervention orders, and seeking financial assistance or compensation. Specialist community legal centers (CLCs) can help with these issues:
- Women’s Legal Service Victoria: Provides free legal advice and representation for women experiencing family violence.
- Law and Advocacy Centre for Women Ltd: Assists victims in applying for financial assistance and preparing paperwork.
- YouthLaw: Offers support to individuals under 25 regarding various issues, including intervention orders.
- Generalist CLCs: Can assist with some victims of crime matters, such as financial aid applications.
Djirra, an Aboriginal Community Controlled Organisation, provides culturally safe services for First Nations people facing family violence, including help with intervention orders and compensation.
The main types of assistance offered by CLCs include:
- Basic Legal Information: CLCs like Djirra and the Women’s Legal Service Victoria provide downloadable resources and information on financial assistance.
- Legal Advice and Assistance: Victims can receive legal advice in person or via phone from CLCs, including support specifically for young people from YouthLaw.
- Duty Lawyer Services: Some CLCs, such as Women’s Legal Service Victoria and Fitzroy Legal Service, provide duty lawyers at courts for free legal advice and representation during intervention order hearings.
- Ongoing Casework: Certain CLCs offer continuous legal representation and assistance, focusing on financial aid applications or intervention orders, depending on eligibility.
Strengths of CLCs
Free legal information is available on many Community Legal Centre (CLC) websites. For example, The Law Handbook, published by the Fitzroy Legal Service, is a comprehensive resource that provides information about court processes for both accused individuals and victims of crime.
Some legal information is available in different languages, and some CLCs offer free interpreter services. This support helps individuals who do not understand or communicate in English to access legal information or advice in their own language.
CLCs aim to educate the community about legal processes and individuals’ rights. The Law Handbook is accessible at any time, and CLCs often deliver programs designed to help people understand the justice system.
limits of CLCs
CLCs have noted that there is insufficient
funding to be able to help everyone who needs
legal assistance, and that there is a ‘service
gap’, which means some people are not
receiving help.
Many CLCs do not assist people charged with
an indictable offence, and many are limited to
assisting people charged with a summary offence
or victims of crime. Victims of crime may also
be unable to get assistance for all the issues
they face.
CLCs may not have enough staff or volunteers
to meet the needs of accused people and
victims of crime. This may result in people
being turned away from drop-in clinics, or in
less time being given to people with complex
legal issues.
define plea negotiation
pre-trial discussions between the prosecution and the accused, aimed at resolving the case by agreeing on an outcome to the criminal charges laid
explain plea negotiation
Criminal cases are resolved in courts, which determine guilt and impose sentences. Some cases can be settled without going to trial through plea negotiations.
Plea negotiations involve discussions between the prosecutor and the accused about the charges, potentially leading to an agreement where the accused pleads guilty in exchange for concessions, such as dropping some charges. This process can apply to both summary and indictable offenses, although many prefer the term “plea negotiations” over “plea bargaining” due to its negative connotations.
Outcomes of plea negotiations may include:
- The accused pleading guilty to fewer charges.
- The accused pleading guilty to a charge with agreed-upon facts.
- The accused pleading guilty to a lesser charge with a lower maximum penalty.
Negotiations typically begin when the accused or their lawyer expresses a willingness to communicate, and discussions are usually held on a “without prejudice” basis. These can take various forms and may require time to reach an agreement, especially when multiple charges are involved.
Plea negotiations do not determine the sentence, as only the courts can do that. After negotiations, the court will decide the appropriate sanction based on the charges to which the accused has pleaded guilty.
Victims should be consulted before plea negotiations, and their views should be considered, although they do not dictate the prosecutor’s decision to negotiate.
Plea negotiations serve several important purposes:
- Certainty of Outcome: Plea negotiations provide assurance regarding the outcome of a criminal case. When the accused pleads guilty to certain charges, it guarantees a definitive conclusion (i.e., a guilty plea) and eliminates the risk of an acquittal. However, it’s essential that the charges accurately reflect the accused’s wrongdoing. For instance, if someone is charged with murder, they might agree to plead guilty to a lesser charge of manslaughter. It is crucial that the manslaughter charge still appropriately represent the offender’s actions so that the community and the victims do not perceive the plea negotiations as the accused being “let off.”
- Cost, Time, and Resource Savings: When plea negotiations result in an early guilty plea, they prevent the need for a trial or hearing. This not only conserves the court’s and prosecution’s resources but also saves the time and expenses typically associated with a trial.
- Prompt Resolution: Plea negotiations facilitate a swift conclusion to a criminal case, sparing everyone involved from the stress, trauma, and inconvenience of a full trial or hearing. An early resolution helps relieve victims and witnesses from the burden of providing testimony, which may assist victims in moving on from their experience.
appropriateness of plea negotiations
Plea negotiations can occur only if they are in the public interest. Key factors include:
- The accused’s willingness to cooperate with investigations of co-offenders or other crimes.
- The strength of the evidence, including the prosecution’s case and possible defenses.
- The accused’s readiness to plead guilty.
- Whether the accused has legal representation; self-represented individuals may face challenges in negotiations.
- The willingness of witnesses to testify, which impacts the prosecution’s chances.
- The potential negative effects of a full trial on victims and witnesses.
- The time and costs involved in conducting a trial.
- The victim’s views, which should be considered by the prosecutor.
In addition, the accused and their legal representatives will need to consider whether it is in the best interests of the accused to negotiate with the prosecution. For example, the impacts of a guilty plea may be significant for an accused person (e.g. it may impact on future employment). Alternatively, the costs and delays of proceeding to trial may impact on the client significantly, making a negotiation appropriate. The following scenario is an example of a plea negotiation.
strengths of plea negotiations
Negotiations help with the prompt
determination of criminal cases. This is
because they avoid a full hearing or trial, and
the matter can proceed to sentencing.
It is possible that our criminal justice system
would not be able to cope without plea
negotiations.
Victims, witnesses and their families, and
the accused’s family are saved the trauma,
inconvenience and distress of the trial
process. Sometimes the trial process makes
victims and witnesses relive the crime and
hear evidence that may be distressing.
The prosecutor will consult with victims
and may take their views into consideration
when deciding whether to negotiate with an
accused.
Plea negotiations provide substantial benefits
to the community by saving the cost of a full
trial or hearing. In particular, they save the
resources of the prosecution and the court.
Plea negotiations help to make sure there is
certainty of outcome for the parties. Going to
trial or other hearing risks the possibility of
an acquittal. Therefore, a plea negotiation can
help achieve a guilty plea for an offence that
reflects the crime.
limits of plea negotiations
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.
The negotiation process may be seen as
the prosecutor avoiding the need to prove
the case beyond reasonable doubt, which
is a fundamental principle of our justice
system and upholds the presumption of
innocence (some people may argue in turn
that an innocent person would not enter into
negotiations).
Victims do not have a ‘final say’ on whether a
prosecutor negotiates with the accused [i.e.
their views are not determinative on whether
there will be a plea negotiation].
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].
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.
Victoria legal aid- uphold fairness
Community Legal Education: VLA provides community legal education to inform people about their legal rights and responsibilities. This empowers individuals to navigate the legal system more effectively and advocate for themselves
Plea Negotiations: VLA supports plea negotiations to ensure that the outcomes of criminal cases are fair and just. This includes advising clients on the best course of action and advocating for fair plea deals.
Ensuring Fair Trials: VLA helps people navigate the court system, ensuring they have the support they need to present their case effectively. This can be crucial in ensuring that trials are conducted fairly, as individuals can face significant disadvantages if they cannot adequately represent themselves.
Victorian legal aid limits of fairness
The means test is often seen as a barrier to accessing legal aid for some individuals who might need it most. For example, someone who is just above the income threshold for legal aid may still face significant financial hardship in hiring a private lawyer. This system can inadvertently create an unfair playing field, where individuals who need help the most but don’t meet the financial criteria for legal aid are excluded, potentially leading to unequal outcomes in the legal system.
Due to limited funding and increasing demand, VLA may struggle to provide adequate legal assistance to everyone who needs it. This can result in some individuals not receiving the support they need, which undermines the principle of fairness
Victorian legal aid - uphold equality
Access to Legal Services for Vulnerable Groups: VLA prioritizes people who are experiencing social or economic disadvantage, such as low-income individuals, people with disabilities, Indigenous Australians, and those from culturally and linguistically diverse backgrounds. This ensures that legal representation is available to those who might otherwise be excluded from the justice system.
Victorian Legal Aid advocates for systemic reforms to improve access to justice for all, particularly for vulnerable groups. They engage in policy work and collaborate with other agencies to address issues such as racial discrimination, access to legal services, and reforms to the criminal justice system.
Victorian legal aid - limit equality
VLA has specific financial and means testing criteria that determine eligibility for legal aid. This means that individuals with incomes just above the threshold may still struggle to afford private legal representation but are excluded from receiving aid. As a result, those in “the gap” (middle-income earners) might not have access to legal support, which can disproportionately affect certain groups.
The legal professionals working within VLA are often handling a high caseload due to limited resources. This can result in less time and attention for each client, potentially impacting the quality of representation, especially for vulnerable individuals who require additional support and advocacy.
vic legal aid- uphold access
VLA provides legal assistance to individuals who meet specific eligibility criteria based on income, assets, and the nature of their legal issue. By assessing an individual’s financial means, VLA ensures that those who cannot afford private legal services still have access to support. This is especially important for low-income individuals who might otherwise be excluded from the legal system.
VLA prioritizes assistance for those facing the most significant disadvantage. This includes people experiencing domestic violence, individuals in prison, Indigenous Australians, individuals with disabilities, and those who are culturally and linguistically diverse. VLA ensures that its resources are allocated where they are most needed, providing support to the most vulnerable in society.
vic legal - limit access
VLA has strict eligibility criteria based on income and assets. If an individual’s financial situation exceeds certain thresholds, they may not qualify for legal aid, even if they cannot afford private legal representation. This creates a gap for those who are just above the financial threshold but still struggle to afford legal services, leaving them without access to support.
VLA has limited funding and resources to provide legal aid, which can lead to long waiting times for legal advice or representation. With increasing demand for services and limited staff, VLA may not be able to meet the needs of everyone who seeks help, creating delays or leaving some individuals without support.
differences between vla and clc
Victoria Legal Aid: VLA is a statutory authority funded by the Victorian Government. It provides free legal advice and representation for eligible individuals.
Community Legal Centres: CLCs are independent, not-for-profit organizations. They receive funding from various sources, including government grants and private donations
Victoria Legal Aid: VLA offers a wide range of legal services, including duty lawyers at courts, legal advice, and representation in criminal, family, and civil law matters.
Community Legal Centres: CLCs provide free legal advice, casework, and legal education tailored to the needs of their specific communities. Some CLCs focus on general legal issues, while others specialize in areas like tenancy, consumer action, or employment law
plea negotiations uphold POJ
Fairness:
Informed Choices: Both parties can negotiate a mutually acceptable outcome, providing the accused with an opportunity to plead guilty to lesser charges while still ensuring that justice is served.
Proportional Sentences: Plea negotiations can result in more proportionate sentences that reflect the specific circumstances of the case, promoting fairness in sentencing.
Equality
Uniform Processes: Plea negotiations follow standardized procedures that apply to all individuals, regardless of their background or circumstances. This ensures a consistent and equal approach to resolving cases.
Access:
Reduced Court Congestion: Plea negotiations help to reduce the number of cases that go to trial, making the court system more efficient and accessible for other cases.
Timely Resolution: By resolving cases more quickly, plea negotiations provide timely access to justice for both the accused and the victims.
