UNIT 3- aos1 (part 2) Flashcards
explain court hierarchy
Victorian courts are arranged in a hierarchy ranked on the severity and complexity of the cases they hear. Each court has its own jurisdiction to hear criminal cases.
Original jurisdiction- the power of a court to hear a case for the first time
Appellate jurisdiction- the power of a court to hear a case in which a decision is being reviewed or challenged on a particular ground.
High Court is a federal court and hears appeals from the state and territory Court of Appeal. The High Court need to give leave (consent) to a party who wants to appeal.
justify specialisation for vic hierarchy
Supreme Court (Court of Appeal): Specializes in criminal appeals for indictable offenses and has expertise in sentencing.
Supreme Court (Trial Division): Hears the most serious indictable offenses and has specialized knowledge of trial processes and crime elements.
County Court: Experienced in specific types of indictable offenses.
Magistrate’s Court: Focuses on summary offenses that require quick resolution and has experience with self-represented defendants.
Children’s Court: Specializes in cases involving young offenders.
Coroners Court: Investigates suspicious deaths and fires or unknown causes of death.
The court hierarchy in Victoria enables staff to gain expertise in specific areas, leading to more just and accurate outcomes.
justify appeals for vic hierarchy
If a party is dissatisfied with a decision in a criminal case, they can appeal to a higher court. The party who appeals is the appellant, while the opposing party is the respondent. The appeals system ensures fairness by correcting mistakes made in the original decision. Without higher courts, there would be no means to appeal, potentially leading to unfair outcomes.
Grounds for appeal in a criminal case include:
- Question of law: An appeal can be made if a law was not followed, such as the admission of inadmissible evidence.
- Conviction: The offender can appeal their conviction.
- Severity or leniency of a sanction: The prosecution may appeal for leniency, while the offender may argue that the sentence is excessively harsh.
Prosecutors cannot appeal acquittals (not guilty verdicts), and the appellant must obtain permission from the court to proceed with the appeal.
The court hierarchy allows superior courts to review and correct decisions made by lower courts, promoting fairness and reducing unjust outcomes.
criminal jurisdiction of Vic Courts
Magistrate’s Court:
Original jurisdiction
-all summary offences and indictable offences heard summarily
-committal proceedings, bail applications and warrant applications
Appellate- none
County Court
Original Jurisdiction
-indictable offences, except murder, attempted murder, certain conspiracies, corporate offences.
Appellate Jurisdiction
- from the Magistrate’s Court on conviction on conviction or sentence
Supreme Court (Trial Division)
Original jurisdiction
-most serious indictable offences
Appellate jurisdiction
-from the Magistrate’s court on points of law
Supreme Court (court of appeal)
Original jurisdiction
-none
Appellate jurisdiction
-from the County Court or the Supreme Court (trial division)
-From the Magistrate’s Court where the Chief Magistrate decided the case
strengths of court hierarchy
- A court hierarchy allows courts to specialise in different types of criminal matters, which allows more efficient processes or resources based on the cases they hear
-the existence of a court hierarchy allows appeals to be made by both parties if there is an error in the original decision
limits of court hierarchies
- the many different courts can be confusing for people who do not understand the criminal justice system. This can be particularly so for people charged with an indictable offense, where the case will involve both the Magistrate’s Court and one of the higher courts
- The court hierarchy does not allow for an automatic right to appeal in most instances, offenders need to establish grounds for appeal. This can restrict the ability of accused people to access the appeal hierarchy, particularly self-represented people, who may struggle to formulate grounds for appeal.
roles of the magistrate and judge
If the accused is charged with a summary offence, the case is generally heard in the Magistrate’s Court, with the magistrate overseeing it. For indictable offences, the case usually goes to the County Court or the Supreme Court, where a judge takes the primary role, although the magistrate still oversees the committal proceeding in the Magistrate’s Court.
Judges and magistrates are central figures in criminal cases, acting as impartial arbiters to ensure fair court procedures. They must not favor either side and have no connections to the prosecution or the accused. In Victoria, judges and magistrates are appointed, not elected. To qualify as a judge, one must be under 70, hold a law degree, and have at least eight years of legal experience.
Key roles include:
- Acting impartially
- Managing the trial or hearing
- Deciding the case outcome
- Sentencing offenders
role of judge/magistrate- act impartially
Judicial impartiality is crucial for maintaining public confidence in the legal system. It requires judges and magistrates to be unbiased and to avoid any appearance of bias, known as apprehended bias. If there’s a concern about a judge’s neutrality due to their conduct or associations, a party may request their recusal from the case to ensure impartiality.
role of judge/magistrate- manage the trial or hearing
Magistrates and judges play a crucial role in overseeing cases to ensure fair court procedures. They:
- Ensure both parties have equal opportunities to present their case by managing witnesses, trial order, and legal conduct.
- Can ask questions, recall witnesses, or call new witnesses with both sides’ permission.
- Make decisions on evidence admissibility, including:
- Relevance to the case.
- Exclusion of hearsay evidence, with some exceptions.
- Exclusion of opinion-based evidence, with certain exceptions.
- Adjust trial processes to prevent unfair disadvantages, such as allowing breaks or instructing legal practitioners. Their role is impartial, and they do not intervene to compensate for inadequate representation.
role of judge/magistrate- decide or oversee the outcome of the case
Magistrate
In the Magistrates’ Court, the magistrate decides the guilt of the accused in summary offences without a jury. They listen to both parties’ cases and determine guilt beyond reasonable doubt. If found guilty, sentencing occurs later; if not guilty, the case ends.
Judge
In County or Supreme Courts, the jury determines guilt, while the judge facilitates the trial. The judge ensures the jury understands their responsibilities and summarizes the case, explaining relevant laws and evidence. They may clarify legal concepts, such as “beyond reasonable doubt,” and may also decide on majority verdicts if jurors cannot unanimously agree.
role of judge/magistrate- sentence an offender
If an accused is found guilty or pleads guilty, a plea hearing will be scheduled where both parties make submissions regarding sentencing. The judge or magistrate will then hand down a sentence, which may occur the same day or later, following the Sentencing Act 1991 (Vic). During sentencing, the judge hears from both parties and can consider victim impact statements to understand the offence’s impact. This process ensures procedural fairness, as any failure to allow proper submissions may lead to grounds for appeal.
strengths of judges and magistrates
- The judge or magistrate serves as an impartial umpire, overseeing the trial without favoring either party. They ensure the rules of evidence and procedure are followed, allowing both parties to present their cases.
- Judges and magistrates can assist self-represented defendants and adjust the trial process for more vulnerable individuals, such as youth, those with disabilities, or those with mental health conditions.
limits of judges and magistrates
- Judges and magistrates are human and can experience bias, especially when fatigued.
- Research indicates a lack of diversity among Australian judges and magistrates. In 2015, only four judicial officers in Victoria were Asian Australians, and women were underrepresented in higher courts. This may affect how comfortable accused individuals feel in court and their confidence in justice.
- Judges and magistrates must limit their interference in cases, even with self-represented accused persons, despite their experience.
explain what a jury is
The jury system, a fundamental right established by the Magna Carta, allows for trial by peers and community participation in the legal process. Those charged with an indictable offence and pleading not guilty have the right to a jury trial, typically in the County Court or Supreme Court of Victoria. A criminal jury, made up of 12 randomly selected from the electoral roll, serves as the fact-finder in the trial, determining the truth of various claims. In some lengthy trials, up to 15 jurors may be empaneled. The empanelment process excludes disqualified individuals (like certain prisoners) and those ineligible (such as lawyers and police officers), while allowing others to be excused for valid reasons. Jurors must independently and seriously make their decisions, free from undue influence by their peers.
roles of the jury (list)
- be objective
- listen to and remember the evidence
- understand directions and summing up
- deliver a verdict
roles of the jury- be objective
The jury must be unbiased and bring an open mind to the task, putting aside any prejudices or preconceived ideas. A jury member must have no connection with any of the parties and must also ensure they decide whether the accused person is guilty or not guilty based on the facts and not on their own biases.
roles of the jury- listen to and remember evidence
Evidence is sometimes complicated, particularly in cases involving fraud and drugs, and often presented gradually and in the form of questions and answers. The jury members will need to be able to make sense of all this evidence. Jurors can take notes if it helps them to remember information, but they must make sure they continue to concentrate on what is taking place in the courtroom. In the past a jury has been discharged because a jury member fell asleep. A jury must not undertake its own investigations of what happened, conduct any research on the case, or make any enquiries about trial matters. They are not allowed to use the internet to search for information. Doing so can lead to penalties and the discharge of the jury.
roles of the jury- understand directions and summing up
At the conclusion of a trial the judge will give jury directions ; that is, instructions to the jury about issues or points of law, and will sum up the case. The jury is required to listen to the directions and the summing up given by the judge, and can ask for an explanation about any legal point they do not understand.
roles of the jury- deliver a verdict
The jury must deliberate confidentially in the jury room, forming opinions on which party’s arguments they believe without pressure from others. They must decide the facts of the case, determining guilt in a criminal trial. A unanimous verdict is required, though a majority verdict may be accepted in some cases, except for charges like murder, treason, or certain drug offenses. The court can also accept a guilty verdict for an alternative offense.
strengths of the role of the jury
- Jury members are randomly picked, have no connection to the parties, and make a decision based on facts, not on biases or on their own enquiries
-The jury system allows members of the jury to participate in the criminal justice system processes and ensures that justice is ‘seen to be done’. - collective decision-making can reduce the possibility of bias, as it means any personal, subconscious biases can be identified during the deliberation process and addressed by the group
-Juries represent a cross-section of the community. They are made up of a diverse group of people, which can lead to the decision reflecting the views and values of our society.
limits of the role of the jury
- jury members may have unconscious biases or prejudices, and as they do not give reasons for their decisions, there is no way of knowing whether bias played a role in their decision-making
- Criminal trials can be complex, including directions giving to the jury and the evidence given at trial. It is not clear whether 12 laypersons on a jury will be able to understand the legal principles involved and the evidence that is given to then make a decision based on the facts.
- Jury trials may result in further delays as rules, evidence and processes need to be explained to the jury, and a jury may require some time to deliberate.
- A number of people cannot participate in a jury because they are ineligible, excused or disqualified. Therefore, it is possible that a large section of the community is not represented.
roles of the prosecution- disclose information to the accused
The prosecutor’s role is to disclose all relevant information to the accused, including evidence and witness statements, as well as material that may assist the defense. Recently, the Victorian Law Reform Commission (VLRC) recommended amending legislation to clarify that the Director of Public Prosecutions (DPP) has an ongoing disclosure obligation, even after a case concludes. This obligation includes disclosing relevant convictions of prosecution witnesses, as such information can help the accused’s legal team challenge the witness’s credibility. For instance, a witness with a prior fraud conviction may not be deemed credible when testifying against the accused.
roles of the prosecution- participate in the trial or hearing
Opening Address:
Outlines the prosecution’s case.
Helps the jury (or magistrate) understand the issues.
Gives an overview of the evidence to be presented.
Only in summary hearings if leave is granted.
Presenting Evidence:
Calls and examines witnesses (examination-in-chief).
Includes both lay witnesses (e.g., eyewitnesses) and expert witnesses (e.g., psychologists).
Cross-Examination:
Cross-examines witnesses called by the defense (accused).
Closing Address:
Made after all evidence is presented.
Limited to facts/evidence—no emotional appeals or personal opinions.
Important: Must avoid making comments that provoke emotions or give personal views.
Example: Appeal allowed in a case where prosecutor’s closing address was deemed inappropriate.
roles of the prosecution- make submissions about sentencing
If the accused pleads guilty or is found guilty, the matter will be set down for a sentencing hearing at which the parties can make submissions about sentencing.
The court sets a date for the sentence hearing to discuss sentencing.
Prosecutor’s Role:
Inform the court about applicable laws and relevant details of the offence or offender.
Assist the court in determining an appropriate sentence.
Important Note:
The prosecutor should not suggest a specific sentencing range.
The High Court has held that the prosecutor should refrain from making such submissions.
role of the accused- participate in the trial or hearing
The accused can either fully participate in the trial or remain silent.
If the Accused Presents a Defence:
Opening Address:
Summarizes the defence’s case (similar to the prosecutor’s opening).
Must avoid irrelevant material or uncalled evidence.
In the Magistrates’ Court, must get leave to present opening and closing addresses.
Presenting Evidence:
Typically done by calling witnesses.
The accused may also testify at any stage of the trial.
Cross-Examination:
Cross-examine witnesses called by the prosecution.
Closing Address:
Made after the prosecutor’s closing address.
Should be limited to the evidence presented during the trial.
role of the accused- make submissions about sentencing
Right to Make Submissions:
The offender (or their legal practitioners) can make submissions about sentencing.
Goal:
Aim to obtain the least possible sentence by presenting factors that support a lighter sentence.
Important Note:
Must not mislead the court during these submissions.
roles of the parties- strengths
The prosecutor must disclose all relevant matters to the accused.
The accused must be given notice of any witness changes to avoid “trial by ambush.”
Both parties can present their cases, including:
Opening and closing addresses
Examine and cross-examine witnesses (examination-in-chief & cross-examination).
The accused has no obligation to present evidence or say anything during the trial.
roles of the parties- weaknesses
VLRC on Disclosure Issues:
The Victorian Law Reform Commission (VLRC) noted issues with early and adequate disclosure in Victoria.
Police sometimes wait for the defence to request information instead of providing it upfront.
Challenges for Self-Represented Accused:
Complex processes make it hard for self-represented accused to navigate without a lawyer.
Right to Silence & Party Control:
The right to silence and party control may mean that the truth doesn’t come out.
This can be particularly difficult when the accused is the only person who knows what happened.
It may feel unjust for victims and their families when the accused chooses to remain silent.
legal practitioners- why are they needed?
The Law Council of Australia emphasizes that access to legal advice is crucial for upholding the rule of law, being an internationally recognized human right. Adequate legal representation, particularly for those facing criminal charges, ensures individuals can effectively challenge evidence and avoid wrongful convictions.
The need for legal practitioners arises because:
- Self-represented individuals often lack the skills to navigate the criminal justice system, including plea negotiations and trial procedures.
- They may be too emotionally invested to make objective decisions, impacting their case.
- In sensitive cases, legal representation protects victims from the trauma of being questioned by the accused.
- While courts can assist self-represented defendants with procedural understanding, they cannot advocate on their behalf.
court order for legal representation
The Criminal Procedure Act 2009 (Vic) allows courts to adjourn trials for serious offences until the accused secures legal representation from VLA, provided the court believes that a fair trial isn’t possible without it and the accused cannot afford a lawyer. The accused must prove their inability to pay for legal representation. This is consistent with the High Court’s decision in R v Dietrich (1992), where the court held that a trial may be stayed to ensure the accused can obtain necessary representation for a fair trial.
legal practitioners- strengths
- Legal practitioners are experts who can help the accused person navigate the criminal justice system. This includes assisting and conducting opening and closing addresses, where there are rules about what they can or cannot say
- Legal practitioners have objectivity in being able to make decisions in the criminal case, such as whether to accept an agreement in a plea negotiation. Self- represented accused people do not have that objectivity
- Legal practitioners can help avoid delays that may arise with self-represented accused people (as the trial processes may slow down to allow accused people to understand what is happening)
legal practitioners- weaknesses
- not all legal practitioners are equal or have the same level of experience and skills. Some legal practitioners are more experienced than others, which may impact on the quality of the legal services.
- not everyone can afford legal representation, so some people may be left to represent themselves. However, often self-represented accused people do not have the necessary skills, experience or objectivity to be able to make the right decisions, so there may be a risk that they do not get a fair trial.
- legal representation alone may not assist an accused, particularly those who cannot understand English or those suffering trauma (such as victims). Therefore, more support may be needed.
costs of legal representation
Main Costs: Legal fees for advice and representation are the primary costs in a criminal case.
Impact on Accused: The accused often needs legal representation to navigate the system, which can be costly.
Impact on Victims: Victims may also incur costs for legal assistance to assert their rights and understand procedures.
Affordability: Not everyone can afford legal representation, creating a disadvantage, especially for the accused, who must present their case in court.
Legal Aid: Those unable to afford a lawyer can seek assistance from organizations like Victoria Legal Aid (VLA), community legal centres (CLC), or pro bono legal services.
Self-Representation: If no assistance is available, the accused may have to represent themselves, increasing pressure on the courts.
Hourly rates for criminal defense lawyers in Australia typically range from $200 to $600 per hour, though rates may be higher in more complex cases or for highly experienced lawyers.
measures to address costs
Free Legal Aid: Organizations like VLA and CLCs provide free legal aid to address rising legal costs, aiming to create a fairer legal system.
Increased Demand for Aid: High demand has led to many being ineligible for legal aid, resulting in more self-represented parties in the criminal justice system.
Statistics: Around 8.5 million Australians face legal issues each year, but fewer than half seek help, often due to affordability.
Challenges of Self-Representation: Self-represented individuals struggle with legal procedures, leading to longer trials and additional court resources as judges assist them.
Vulnerable Parties: Those without legal representation are often vulnerable, increasing their risk within the legal system.
Court Adaptations: Courts, like the County Court, provide resources for self-represented parties, including dedicated websites and guides.
Cost-Reduction Strategies: Committal proceedings filter out weak cases and encourage early guilty pleas, while plea negotiations can resolve cases without trial, reducing costs.
Effectiveness of Committal Proceedings: Some argue committal proceedings are ineffective, as many cases still proceed to trial despite filtering efforts.
costs- legal system/ representation
The criminal justice system incurs significant costs for those who cannot afford legal representation, impacting both the accused and victims who need legal assistance. Lack of legal aid can especially disadvantage individuals from lower socioeconomic backgrounds, forcing them to represent themselves and hindering fairness in the justice system.
Time - legal system
an accused has a right under the Victorian Human Rights Charter to be tried without unreasonable delay. Where possible, delays should be avoided, and parties should work with practical speed to ensure an accused is tried within a reasonable time. What is considered a reasonable time will, however, depend on the case. The motto ‘justice delayed is justice denied’ is just as relevant today as it was when the idea was expressed in the Magna Carta: ‘to no one will we sell, to no one will we refuse or delay, right or justice’. Delays in having a trial heard and determined can affect the ability of the criminal justice system to achieve justice
time- court delays
Most criminal cases involve tasks like gathering evidence, interviewing witnesses, and determining charges against an accused. The time these tasks take varies by case complexity, with the County Court of Victoria estimating that, as of July 1, 2022, cases take 14 to 16 months to be trial-ready. Delays are often attributed to the justice system’s reliance on evidence gathering, hard copy documents, and committal proceedings in seemingly straightforward cases. Additionally, parties frequently wait for court hearing dates, and the COVID-19 pandemic has led to adjourned trials, resulting in a backlog of cases.
time- measures to address delays
The use of plea negotiations in criminal cases has greatly helped reduce court delays by facilitating early guilty pleas, allowing for quicker case resolutions and saving time, costs, and stress associated with lengthy trials. This early resolution also frees up courts to handle other cases that require a judge and jury. To address delays during the COVID-19 pandemic, the Victorian Parliament enacted temporary legislation for judge-alone trials, which many accused opted for. Additionally, the investment in digital technology has enabled more remote hearings, such as video appearances, and the ‘Online Magistrates’ Court’ program is expected to expand, allowing even more cases to be heard online.
Cultural differences - legal systems
The community in general is becoming more aware of the need to ensure that all people have access to the justice system, and that all people are treated equally and fairly. But this is not always the case, particularly for different cultural groups. These include people for whom English is not their first language and First Nations peoples. Cultural difficulties include lack of knowledge of the legal system, lack of understanding of the English language, failure of the legal system to account for differences, and cultural misunderstandings
difficulties faced by first nations people
First Nations peoples have a rich system of laws and customs passed down through generations. Those from traditional areas may struggle with giving and understanding evidence in courts, often due to cultural or language barriers, embarrassment, and fear. Key difficulties include:
- Language Barriers: Subtle differences in language can lead to misunderstandings. For instance, “kill” might mean to harm without implying death, while “story” means the truth, not a fabrication.
- Direct Questioning: The typical yes/no format of questioning can be challenging for First Nations witnesses, as many cultures prefer long discussions and storytelling for resolution, making them appear evasive or dishonest to outsiders.
- Body Language: Some First Nations people may avoid direct eye contact, which can be misinterpreted as disinterest or unreliability by those unfamiliar with these customs.
- Cultural Taboos: Specific topics, such as names of the deceased or gender-based knowledge, may be taboo, leading to misunderstandings for those charged with an offence.
**Lack of understanding of court procedures
– some First Nations peoples may not understand why they have to tell the same story over and over, such as during examination-in-chief and then cross-examination. In an attempt not to offend the authorities, they may think they are required to change their story for each telling. This makes it easier for the barrister to make a witness appear inconsistent
barrister vs solicitor
solicitor- Magistrate’s Court
Solicitor: gives advice about the law and the individual rights. Solicitor can draw up documentation, research the relevant law, appear in court on behalf of their client (usually in the magistrates’ court, assist the barrister
Barrister: presents the case to court. They usually work in the higher courts. Also known as counsel or advocate
Barrister- $2,000-6,000
Solicitor- Approx. $600
costs- fairness
- If an accused person cannot properly participate in a hearing, it may lead to an unfair process. In particular, the following can lead to unfairness:
– lack of familiarity with the language of criminal trials
– lack of objectivity and emotional distance from what is happening in the case
– lack of knowledge of courtroom facilities
– lack of understanding of procedure. - Not all legal representation is equal – that is, the use of an inexperienced, cheap lawyer may result in procedural unfairness, such as making errors in law or advising an accused incorrectly.
cost- equality
- If parties cannot afford representation, they are at risk of not being treated as equal before the law. For example, they might come up against skilled and experienced prosecutors who understand the law and procedures, formalities and language. This places an unrepresented accused at risk of not being able to perform at the same level as their opponent.
- If a person is unrepresented, the judge or magistrate overseeing the hearing or trial will need to assist the unrepresented accused to understand court procedures and certain rights in relation to those procedures to ensure equality is achieved.
cost- access
*An accused who cannot pay for legal representation may have trouble accessing the courts and mechanisms used to determine the criminal charges. This could result in an accused person pleading guilty to a crime they may not have committed because they do not have the means or ability to defend the case. They may represent themselves poorly, or may not be able to make sophisticated submissions as part of sentencing.
*The accused will also have less access to information and knowledge than a person who is well represented.
cost (VLA) - fairness
Legal aid can assist a person to understand the criminal justice system, obtain legal advice and legal representation.
* Limits on access to free legal services can affect an accused’s ability to present their casein the best possible light and receive a fair hearing.
* The ability and responsibility of court personnel, including judges and magistrates, to assist may decrease some problems associated with self-representation and therefore increase fairness.
* A judge can stay a trial until an accused obtains legal representation if there is a risk that there will not be a fair trial
cost (VLA) - equality
Legal aid aims to ensure that an accused is not disadvantaged because of their lack of legal representation.
* An accused who is not eligible for legal aid is at risk of not being treated the same as the prosecution. It is usually the most vulnerable in our society who need legal aid, and therefore the ones most likely to be denied legal aid. They are therefore most at risk of being at an unfair advantage when in the courtroom when up against skilled prosecutors.
* If there is something about the self-represented party that means they could be discriminated against – such as a disability or mental illness – it is the responsibility of the judge or magistrate to make necessary accommodations to ensure those people can participate in proceedings
costs (VLA) - access
- VLA and CLCs aim to ensure there is access to justice.
- A party who cannot get any form of legal aid through these institutions is at risk of not being able to access information, legal help, advice, assistance or representation, and may not be able to understand the processes involved.
- The fulfilment of the responsibilities of the judge and the magistrate to ensure a self-represented accused receives assistance goes some way towards helping the accused understand legal jargon or legal procedures, or their rights.
- The assistance cannot extend to the judge or magistrate acting for the accused or giving legal advice. This means the accused will still need to navigate their way through complex and difficult procedures, understand aspects such as cross-examination, and make decisions about how to conduct the trial.
measures in place to reduce cost
Free Legal Aid:
VLA and CLCs provide free legal aid to help with costs.
VLA was created to address an unjust system where only those who could afford legal services had access to justice.
Due to increased demand and limited funding, many people are not eligible for legal aid, leading to more self-represented parties in court.
Self-Representation Challenges:
Self-represented individuals often lack understanding of:
Law and formalities
Court procedures, evidence, and language
Trials can take longer due to the judge or magistrate needing to explain the process.
Many self-represented parties are also vulnerable (e.g., homeless, disabled, or young), increasing their risk in the justice system.
Justice Connect & Legal Access:
Justice Connect reports that 8.5 million Australians have a legal problem each year, but fewer than half access legal help.
Court Adaptations:
Courts and judges must adapt by:
Providing extra time for self-represented parties.
Offering resources (e.g., dedicated web pages) for self-represented individuals to better understand the process.
Committal Proceedings & Case Filtering:
Committal proceedings filter out weak cases and offer opportunities to plead guilty early, potentially reducing trial costs.
However, many cases still go to trial due to plea negotiations or ineffective filtering, contributing to trial costs.
Resolution Through Agreements:
Plea negotiations help resolve many criminal cases without a trial, reducing both court and prosecution costs.
measures in place to address delays
- investment in digital technology
- plea negotiations
- temporary use of judge- alone trials
purposes of sanctions- rehabilitation
-Rehabilitation is designed to address the underlying causes of offending, and treat the offender based on those causes.
-If rehabilitation is a relevant purpose, the aim of the sanction will be to help an offender to change their attitude and behaviour with the goal of preventing them from reoffending.
-For rehabilitation to be a relevant purpose in sentencing, the offender must demonstrate remorse.
-A community correction order (CCO) can encourage rehabilitation, but there are also some rehabilitation programs in prison.
purposes of sanctions- punishment
- Punishment is designed to penalise (punish) the offender and show society and the victim that criminal behaviour will not be tolerated.
- Punishment is often a purpose of sanctions in serious or violent cases, such as those involving the death of another person, serious injury, culpable or dangerous driving, or
sex offences. - The punishment must be proportionate to the offence committed.
purposes of sanctions- deterrence
General deterrence:
- designed to discourage others in the community from committing similar offences. This is particularly important in violent or serious offences.
Specific deterrence:
- designed to deter the particular offender from reoffending. A person who loses their licence for drink driving will hopefully be deterred from driving under the influence.
purposes of sanctions - protection
- Protection aims to safeguard the community from an offender in order to prevent them from committing further offences.
- This can be achieved by removing
an offender from the community (putting them in prison) or by conditions attached to a CCO - Protection may be particularly relevant where an offender refuses to participate in treatment or rehabilitation programs, where there is no sign of remorse, or where there is significant criminal history.
purposes of sanctions - denunciation
- Denunciation is designed to demonstrate the community’s disapproval of the offender’s actions.
- This also displays the court’s lack of tolerance for thistype of behaviour.
- A sanction may be given to show the community that the court and society disapproves of and condemns the offender’s conduct
what is a fine
A fine is a sanction that requires the offender to pay and amount of money to the state.
factors impacting ability for fines to achieve their purpose
The wealth of the offender
The ability to denounce the crime
Whether a fine is sufficient to act as a general deterrence
Whether there is a more appropriate sanction.
Purpose of fines:
Punishment; general & specific deterrence; denunciation
features of a fine
what is a communication order
A community correction order (CCO) is a flexible, non-custodial sanction that the offender serves in the community, with conditions attached to the order.
CCOs give offenders the opportunity to address their criminal behaviour and undergo treatment or take part in educational, vocational or personal development programs.
features of community correction orders
core conditions
- must not commit another offence
- must report to specified community correction center
- must report to and be visited by community corrections officer (must notify of change of address)
- must not leave Victoria
- must comply with directions of community corrections officer
Additional special conditions
- unpaid community work
- treatment and rehab
- curfew
- alcohol exclusion
factors that affect the ability of CCO’s to achieve their purposes
-Whether there is a condition that will achieve the right purpose for the offending
-The most appropriate condition to be imposed and whether the court imposes this condition
-Whether the offender will comply with the conditions
Whether a CCO properly protects the community (if needed)
-Whether there is a better sanction that will achieve the necessary purposes
what is imprisonment
Imprisonment is a sanction that involves removing the offender from society for a stated period and placing them in prison
-Where the court imposes a sentence longer than two years it must state a minimum parole period
-A magistrate cannot impose an imprisonment sentence of more than two years for a single offence or five years for more than one offence
-A judge can impose a sentence of life imprisonment, which is for the period of the prisoner’s natural life.
factors that affect the ability of imprisonment to achieve its purpose
-The rate of recidivism
-The availability of space in prison
-The exposure of offenders to negative influences
-Whether the offender will be offered appropriate opportunities to rehabilitate
-Whether there are more appropriate sanctions
-The extent to which the community is protected.
purpose of imprisonment
- Deterrence
- Rehabilitation
- Denunciation
- Protection
- Punishment
imprisonment- important terms
Concurrent and cumulative sentences:
-A concurrent sentence runs at the same time as another sentence
Where two or more sentences are imposed and are served at the same time
- A cumulative sentence is served straight after another
Where two sentences are imposed and are to be served one after the other.
A cumulative sentence must be imposed for certain serious offences or for offences committed by a person in prison, or released on bail or parole
Aggregate sentence
- Where an offender has been convicted for multiple related offences, they may impose an aggregate sentence rather than separate sentences
- This enables the court to impose a more wholistic sentence rather that for the individual acts
Indefinite sentences
- This sentence runs indefinitely but must be reviewed periodically to determine appropriateness
- A judge in the County or Supreme Court may sentence an offender to an indefinite term of imprisonment if they are satisfied to a high degree of the probability that the offender is a serious danger to the community
Recidivism
- This is the rate at which offenders re-offend
- In Victoria, the recidivism rate is around 40%
sentencing factors- aggravating
Aggravating factors: are circumstances about the offender or the offence that can increase the sentence that the offender will receive.
These can include:
The use of violence
The nature & gravity of the offence
Any vulnerability of the victim
The offender being motivated by hate or prejudice
The offence being taken in front of children
A breach of trust by the offender towards the victim
The offence occurring while the offender was on a CCO, bail or parole
The offence taking place in front of children
sentencing factors- mitigating
Mitigating factors are facts or circumstances about the offender or the offence that can decrease the offender’s culpability and lead to a reduction in sentence.
These can include:
the offender showed remorse
the offender has no prior criminal history or is of good character
the offender was acting under duress
the offender has shown efforts towards rehabilitation while awaiting sentencing, or has good prospects of rehabilitation
the offender was under personal strain at the time or they have a unique background
the effect that prison may have on the offender
the injury or harm caused by the offence was not substantial or there was no risk to any people
the offender was young, or had some disability that made them not fully aware of the consequences
the offender pleaded guilty early.
sentencing factors- Victim Impact Statement
A Victim Impact Statement: is an oral o written account filed with the court by a victim that is considered by the court when sentencing.
This can include the injury suffered and the experience that the victim has had.
The purpose of a VIS is to help inform the court of the severity of the offence. If a VIS indicates the crime has had a very significant impact on the victim, this will usually cause the court to increase the severity of the sanction imposed. If a VIS indicates the victim forgives the offender, this may result in the sanction imposed being less severe.
Impact on sentence imposed:
A VIS will assist the court to understand the impact of the crime, however a victim’s statement about what might be an appropriate sanction will not inform the court’s sentencing decision. A VIS is one factor considered by the court in imposing a sanction – it will be weighed against other mitigating and aggravating factors presented to the court.
sentencing factors- guilty plea
A guilty plea: must be considered by the court.
The earlier the guilty plea is made, the larger the impact that it will have on the sentence
This can save time, cost, and trauma for all parties from having to go through with a full trial
Pleading guilty will lead to a discount on the sentence imposed.
A guilty plea at an early stage before trial (or hearing) or at the start of the trial can result in a sentence of reduced severity, because it acts as a mitigating factor.
time factor- court delays
Tasks in Criminal Cases:
Criminal cases involve tasks such as:
Gathering evidence
Locating and interviewing witnesses
Determining what happened and what charges to lay.
The complexity of the case affects how long these tasks take.
Time to Prepare for Trial:
As of 1 July 2022, the County Court of Victoria estimated it takes 14-16 months for a case to be ready for trial once initiated.
Reasons for Delays:
Delays are often attributed to:
The nature of the justice system (e.g., reliance on the prosecution gathering evidence).
Over-reliance on hard copy documents.
Committal proceedings in cases that may be straightforward.
Waiting for Court Dates:
In addition to preparation delays, parties often have to wait for a hearing date.
COVID-19 caused further delays, leading to an ongoing backlog of cases waiting to be heard.
time factor- measures to address delays
Plea Negotiations:
Plea negotiations help address delays by encouraging early guilty pleas.
An early guilty plea speeds up case resolution, avoiding lengthy trials and reducing costs, stress, and inconvenience.
Plea negotiations also free up court time for other cases, especially those that need to go to trial or where public interest requires a judge and jury.
Impact on Court Efficiency:
Resolving cases before trial ensures that courts can handle more cases and avoid long delays.
Plea negotiations help avoid the months or years a trial could take.
COVID-19 & Legislative Response:
The COVID-19 pandemic caused significant delays, especially for jury trials (due to social distancing).
In response, the Victorian Parliament passed measures to assist with court delays during the pandemic.
time factors- plea negotiations poj
Fairness:
Plea negotiations allow the accused to negotiate a plea with the prosecution.
These negotiations ensure that charges reflect the accused’s criminality, aiming for a fair outcome.
Plea negotiations help avoid the burden of trial for victims and witnesses.
Some may perceive plea negotiations as unfair, thinking the accused is being “let off.”
To ensure fairness, the DPP has a policy on when plea negotiations will occur.
Fairness depends on both parties having the necessary information to make an informed decision.
Equality:
Plea negotiations are available to all accused, offering equal opportunities for negotiation or seeking a sentence indication.
Victims may feel disadvantaged because the accused does not face trial, though it can reduce the trauma and stress for victims.
Plea negotiations should not involve an unrepresented accused, as they may face inequality compared to experienced prosecutors.
Access:
Guilty pleas through plea negotiations reduce the trauma, stress, and inconvenience of a trial, improving access to the criminal justice system for all parties.
Victims are consulted about their views during plea negotiations, but their views don’t determine the final outcome.
cultural factors- cultural and language barriers
Language Diversity in Australia:
Many people in Australia were born overseas and speak a language other than English as their first language.
This can affect an accused person’s, victim’s, or witness’s ability to understand court documents, court processes, and the language used in criminal cases.
Challenges for Non-English Speakers:
Non-English speaking victims and witnesses may not fully understand:
Their legal rights.
The different agencies involved.
Legal processes in the courtroom.
These issues can put them at a significant disadvantage in the criminal justice system.
Right to Interpreter Assistance:
Under the Human Rights Charter, individuals charged with a criminal offence have the right to an interpreter at no cost if they cannot understand or speak English.
Interpreters help individuals communicate with their lawyer and court personnel, ensuring fair access to the legal system.
addressing cultural factors
Koori Court:
Koori Court is a division of the Magistrates’ Court and the County Court, focusing on sentencing First Nations offenders.
Goal: To respect First Nations cultures, encourage participation, and reduce overrepresentation of First Nations people in the criminal justice system.
Process: Informal and culturally appropriate, with the opportunity to speak in plain English, tell their story, and have support from Elders and family.
The Court is smoked (cleansed) and decorated with First Nations artwork and artifacts.
Eligibility: The offender must be First Nations, plead guilty, and be charged or living within the jurisdiction of the Koori Court.
Types of Cases in Koori Court:
Only used for sentencing, not for determining guilt.
Restrictions: Not all cases are eligible; only certain types of cases fall within its jurisdiction.
Other Measures for Addressing Cultural Differences:
Free interpreters are provided to ensure fair treatment:
Magistrates’ Court arranges and pays for interpreters for criminal matters.
For indictable offences, the prosecution arranges and pays for an interpreter.
Information in multiple languages is provided by the courts, VLA, and some CLCs to help people understand their rights and the legal process.
Challenges and Calls for Reform:
There have been calls for a national interpreter scheme to ensure consistent access to interpreters across all courts.
Cultural Factors Affecting Aboriginal and Torres Strait Islander People in the Criminal Justice System
Fairness:
The way questions are asked during questioning and giving evidence may lead to confessions or admissions that the accused might not have made otherwise.
Indigenous peoples’ different customs and lack of understanding of court processes can lead to procedural unfairness, as they may struggle to present their case properly, potentially leading to unfavourable treatment in the system.
Equality:
Cultural differences can impact the ability to be seen as equal before the law and to present their case equally.
Aboriginal and Torres Strait Islander people often have to adapt to a system that is different from their own, which can affect their ability to present their case fairly.
Access:
Inability to understand legal processes, legal rights, and court terminology may hinder the ability to access the justice system effectively.
Aboriginal and Torres Strait Islander people may be reluctant to seek information about their rights or court processes if they are unfamiliar or uncertain about the legal system. This can limit their access to justice without adaptations or assistance.
Language Barriers and the Principles of Justice
Fairness:
People from non-English-speaking backgrounds may struggle to present their case due to unfamiliar legal processes and language, increasing the likelihood of unfair outcomes.
Victims and other parties who do not speak English as their first language also face challenges in presenting their case effectively.
Interpreters can bridge the language gap by ensuring that a person’s intentions are accurately communicated, though availability of interpreters can sometimes be limited.
Equality:
A person who cannot communicate effectively in court may be at a disadvantage compared to an experienced prosecutor, jeopardizing their right to equality before the law.
Interpreters help non-English speakers communicate with lawyers and the court, ensuring they can present their case fairly and are not discriminated against, promoting equality in the legal process.
Access:
Without translated information or interpreters, people from different cultural and linguistic backgrounds may struggle to understand legal processes and their legal rights.
Interpreters play a crucial role in helping people access legal advice and information in a way they can understand, ensuring better access to the justice system.
