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Unit 3/4 - Legal Studies > Unit 3 AOS1 SAC 1A > Flashcards

Unit 3 AOS1 SAC 1A Flashcards

To revise information in SAC 1A

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1
Q

Examples of Commonwealth offences

A

Terrorism, people smuggling and espionage

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2
Q

What is a summary offense

A

Summary offences are minor crimes that are heard in the Magistrates court

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3
Q

Examples of summary offences

A

Drink driving, jay walking and minor assaults

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4
Q

Where are summary offences heard

A

Summary offences are heard in the Magistrates court

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5
Q

How do you know if an offence is a summary offence

A
  1. It is heard in the magistrates court
  2. It is listed in the summary offences act 1966 (vic)
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6
Q

What is an indictable offence

A

Indictable offences are serious crimes

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7
Q

Examples of indictable offences

A

Murder, robbery and sexual assault

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8
Q

Where are indictable offences heard

A

Indictable offences are heard in the county or supreme court

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9
Q

What act are indictable offences listed under

A

Crimes act 1958 (vic)

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10
Q

What is it called when a summary offences goes to court

A

A hearing

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11
Q

What is it called when an indictable offence goes to court

A

A trial

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12
Q

What is an indictable offence heard summarily

A

An indictable offence heard summarily is when an indictable offence is heard in the magistrate’s court as a summary offence

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13
Q

What determines whether an indictable offence can be heard summarily

A
  1. If the statute allows (eg: the criminal procedures act 2009 (vic) outlines that a robbery under $100,000 can be heard summarily)
  2. The courts agree that the offence is appropriate to be heard summarily
  3. The accused agrees to have their crime heard summarily
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14
Q

Sanctions given in the magistrates court

A
  1. Adjourned undertaking (with or without a recorded conviction)
  2. Fines
  3. Community corrections orders (CCO)
  4. Imprisonment (maximum of 5 years and 2 years for a single offence)
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15
Q

What is a committal hearing

A

A committal hearing is a pre trial procedure that occurs before an indictable offence is heard at trial at the county or supreme courts. At this stage, it is the responsibility of the prosecution to demonstrate to the magistrate that there is “Prima facie” (at first glance) sufficient evidence to support a conviction at trial.

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16
Q

Purposes of committal hearings

A
  1. Ensure that only strong cases with sufficient evidence proceed to trial
  2. Allows the accused the opportunity to enter a plea after learning about the prosecutions case against them
  3. Ensure a fair trial by making sure that the prosecution discloses their case to the accused
  4. Provides the accused the opportunity to test the prosecutions case through cross examining witnesses
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17
Q

What is the burden of proof

A

It is a requirement within the legal system that places responsibility on the prosecution to prove the facts of the case. In some cases the burden of proof can be placed onto the accused

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18
Q

When is the burden of proof reversed

A
  1. If the accused Defense for their actions is mental impairment
  2. Possession of an illegal suspect range in their property and cannot demonstrate to the court on the contrary
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19
Q

What is the standard of proof

A

The standard of proof is the level of certainty or strength of evidence that is required to prove a case. In criminal law the standard of proof is “beyond reasonable doubt”

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20
Q

What is the presumption of innocence

A

A key principle within the criminal justice system whereby a person who has been accused of a crime must be presented innocent until proven otherwise

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21
Q

In what legislation is the presumption of innocence listed

A

Charter of human rights and responsibilities act 2006 (vic) as well as some common law precedents

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22
Q

How is the presumption of innocence upheld

A
  1. The accused can apply for bail unless they are considered a danger to themselves or others
  2. For indictable offences, a committal hearing must take place whereby the prosecution must demonstrate that there is sufficient evidence against the accused
  3. Prior convictions cannot be revealed until sentencing
  4. The police must reasonable believe that a person has committed a crime before arresting them
  5. An offender had the right to appeal a wrongful conviction
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23
Q

What are the three rights available to the accused

A
  1. The right to be tried without reasonable delay
  2. The right to silence
  3. The right to a trial by jury
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24
Q

The right to be tried without reasonable delay means…

A
  1. The accused is entitled to have their charges heard in a timely manner
  2. There may be natural delays which occur but it must not be unreasonable.
  3. The accuse must be brought to trial as quickly as possible
  4. Timeframes are included - three months for a committal mention for sexual offences and six months for nonsexual offences.
  5. What constitutes reasonable is not defined
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25
Q

In what statute is the right to be tried without reasonable delay listed

A

Sections 21 and 25 of the charter of human rights and responsibilities act 2006 (vic)

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26
Q

The right to silence

A

The term brighter. Silence refers to an entitlement, whereby the accused does not have to say or do anything when being charged with an offence

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27
Q

In what legislation is the right to silence enshrined in

A

The evidence act 2008 (vic) (It states that negative inferences cannot be drawn should the accused refuse to answer)

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28
Q

What protections ensure that the right to silence is upheld

A
  1. The accused can refuse to answer any questions and does not have to give information as part of an investigation of a crime
  2. The accused cannot be forced to give evidence in a criminal trial or answer. Any questions
  3. The accused does not have to file a defence or call a particular witness
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29
Q

What exceptions are there to the right to silence

A

If the police believes that a person has committed or is about to commit a crime or maybe able to assist in an investigation of an indictable offence, the person must give their name and address if asked to do so

30
Q

The right to trial by jury

A

The right to a trial by jury refers to the entitlement that should an accuse plead not guilty to an indictable offence their guilt must be determined by a group of 12 peers, rather than a judge alone

31
Q

In what legislation is the right to trial by jury enshrined in

A

The Juries act 2000 (vic) - requires there to be jury of 12 The criminal procedures act 2009 (vic) - contains provisions for jury empanelment and directions

32
Q

Constitutional right to a trial by jury

A

Section 80 of the Australian Constitution guarantees if a person were to be charged with an indictable commonwealth offence, they are entitled to a jury however this is only available for Commonwealth offences and most criminal offences are legislated by state statutes and the Commonwealth can determine which offences are considered indictable

33
Q

What is a victim

A

A victim is a person who has suffered directly or indirectly as a result of a crime. victims are NOT a party In a case, the state acts on behalf of them to prosecute the accused

34
Q

What legislation outlines the key principles in relation to victims

A

The victims charter 2006 (vic)

35
Q

What does the victims charter act 2006 (vic) outline

A
  1. Recognise that victim should be offered certain information during an investigation
  2. Produce the likelihood of secondary victimisation (being traumatised by the legal system after having already been traumatised by the crime)
  3. Identifies the primary victim (a person who has suffered direct injury as a result of the crime)
  4. The vulnerability stemming from victims that are a young age or with certain disabilities
36
Q

What are the three rights available to a victim

A
  1. The right to give evidence using alternative arrangements
  2. The right to be informed about the proceedings
  3. The right to be informed of the likely release date of the offender
37
Q

The right to give evidence using alternative arrangements

A

This right refers to a situation whereby a victim is also a witness of the crime and may be required to testify in court. When this occurs victims are entitled to certain adjustments to accommodate and lessen further trauma or stress

38
Q

What legislation is the right to give evidence using alternative arrangements enshrined in

A

Criminal procedure act 2009 (vic)

39
Q

What offences allow the right to give evidence using alternative arrangements

A
  1. Sexual offences
  2. A family, violence offence
  3. And offensive, obscene, indecent, language, or threatening behaviour
  4. Offence of sexual exposure
40
Q

Arrangements available, when exercising the right to give evidence using alternative arrangements

A
  1. To testify in a separate room via video link
  2. To request a screen to be put up
  3. To have a support person or dog beside you when testifying
  4. To request that legal representation not wear formal cloaks.
  5. To request that legal representation for The accused not ask questions directly to the victim
41
Q

The right to be informed about proceedings

A

The victims charter recognises that victims may require additional support due to being adversely affected by the crime as such a victim should be entitled to being informed about
1. support services and compensation
2. details of how the legal system will carry out justice

42
Q

What things must the victim be informed about when exercising the right to be informed about proceedings

A
  1. Details of the offence, the accused charged with
  2. The date, time and place of the hearing of charges
  3. The outcome of criminal proceedings, including sentence imposed
  4. Why lesser or fewer charges have been laid
  5. Details of any appeals
43
Q

Exceptions to the right to be informed about proceedings

A

Victims are not entitled to any information that might put the investigation at risk or if they choose not to receive that information

44
Q

The right to be informed about the release date of the accused

A

A person who is a victim of a criminal act of violence may apply to be included in the victims register, whereby they can receive certain information about the offender who has been imprisoned, including notification of the release of the prisoner on parole, at least 14 days before the release

45
Q

What crimes does the right to be informed about the release date of the accused apply to

A
  1. Rape and other sexual offences
  2. Aggravated burglary
  3. Kidnapping
  4. Stalking
  5. Child stealing
  6. Culpable driving causing death
  7. Dangerous driving, causing death or serious injury
  8. Failing to stop after a motor vehicle accident, causing death or serious injury
  9. Offences involving assault or injury punishable by imprisonment
46
Q

What is Fairness (POJ)

A

all people can participate and in the justice system and its processes should be impartial and open

47
Q

3 parts to the principle of fairness

A

1 - impartial process
2 - open processes
3 - participation

48
Q

what is impartial process (POJ fairness)

A

courts and personnel including judges, magistrates and jury members are independent and impartial. this means they should not show bias towards either party and the case must be decided on facts and law not prejudices

49
Q

what is open processes (POJ fairness)

A

the ability for the community to be informed and scrutinize the legal system through being transparent. this allows legal personnel to be held accountable and answerable to their actions

50
Q

what is participation (POJ fairness)

A

this refers to the ability for individuals - the accused, victims and witnesses to engage with the criminal justice system

51
Q

what is equality (POJ)

A

all people engaging with the criminal justice system and its processes should be treated the same way. however if the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow everyone to engage with the justice system without disparity or disadvantage.

52
Q

2 different types of equality (POJ)

A

same treatment - formal equality
different treatment - substantive equality

53
Q

what is same treatment/ formal equality (POJ Fairness)

A

all individuals are treated the same and given the same levels of support regardless of their personal differences or characteristics such as race, religion, gender identity or age. this idea of equality is adopts a one size fits all approach

54
Q

what is different treatment/ substantive equality (POJ Fairness)

A

if the legal system did treat people in the same way but in doing so causes disadvantage or disparities then measures or adjustments should be put in place to allow people to participate in the justice system. this is where the one size fits all approach does not work.

55
Q

what is access (POJ)

A

defined as all people being able to engage with the legal system and its processes on an informed basis

56
Q

what are the 2 different types of access (POJ)

A

engagement

informed basis

57
Q

what is engagement (POJ access)

A

to engage with the justice system, people need to be able to use and participate in the system.
1- physical access
2- technological access
3- financial access

58
Q

what is informed basis (POJ access)

A

people should be aware of their legal rights and the processes involved in their case. this means receiving adequate information in order to make an informed decision eg: deciding whether to plead guilty or not guilty
1- education
2- access to legal support services
3- legal representation

59
Q

what is victorian legal aid

A

VLA is an independent, government funded agency that provides free legal information to the community and legal advice and representations to those who cannot afford a lawyer

60
Q

purpose of VLA

A

1- provide the community with increased access to the justice system
2- ensure that individuals receive fair and equal opportunities to utilise the justice system

61
Q

types of legal assistance for the accused at VLA

A

tier 1 - free legal information
tier 2 - free legal advice (help before court)
tier 3 - duty lawyer
tier 4 - grants of legal assistance

62
Q

strengths of VLA

A
  • free legal information for everyone
  • some info is available in over 30 languages
  • free legal advice is given to those who need it
  • free advice over internet and phone (increased access)
63
Q

weaknesses of VLA

A
  • free info on the website may not be enough
  • limited resources so some may be left without legal representation
  • the ability for VLA to meet demand for services relies on continued funding
64
Q

what are community legal centres

A

CLCs are independent and government funded organisations that aim to provide free legal services for individuals including providing legal info, advice, ongoing assistance and representation. CLC’s have a reciprocal relationship with VLA and they work together to support individuals in the criminal justice system.

65
Q

types of CLC’s

A

generalist - anyone in a certain geographical area
specialist - subset groups needing help eg Youthlaw and refugee legal

66
Q

what matters cant CLC’s assist with

A

rarely become involved with indictable offenses or complex and serious legal issues.

67
Q

CLC elegibility criteria

A
  • the type of legal matter
  • whether other assistance is available (eg VLA)
  • whether the person has a good chance of success
  • whether the centre has the resources to assist
68
Q

types of assistance for the accused at CLC’s

A
  • free legal info
  • legal advice and assistance
  • ongoing casework
69
Q

types of assistance for the victim at CLC’s

A
  • basic legal info
  • legal advice and assistance
  • duty lawyer services
  • ongoing casework
70
Q

what are plea negotiations

A

they are a private discussion/s that occurs within the criminal justice system in order for the accused to consider pleading to lesser or fewer charges

71
Q

when do plea negotiations occur

A

can occur for either summary and indictable offenses any stage before sentencing.

72
Q

purposes of plea negotiations

A
  • save the courts time and money
  • provides certainty of the outcome (removes chance of acquittal)
  • avoid further trauma, stress and inconvenience on victims, witnesses and families

Unit 3/4 - Legal Studies (2 decks)

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