UNIT 3 AOS1 - SAC 1a (criminal)

Question 1

List the parties in a criminal case.

Answer 1

• Prosecution
• Accused

Other important parties in the criminal justice system:
- Judge/Magistrate
- Jury
- Police
- Victim
- Community

Question 2

Explain the principles of justice.

Answer 2

• The term ‘justice‘ is seen as a universal principle that provides all individuals with the entitlement of a range of rights and responsibilities.
• The notion of justice can change over time and is judged by community standards.
• Achieving justice is complex, and can vary with different situations and at different times. Take, for example, someone accused of a crime: the concept of justice for them would be to obtain a fair and unbiased hearing, whereas for the victim, it could be to have the wrongdoer punished severely.

Question 3

Explain the legal principles that uphold the rule of law.

Answer 3

Rule of Law - principle that all people are bound by the law, laws are clear and fair so people are willing to obey them.

• Laws must be clear, known and accessible
• Courts and judges must be independent of the influence of government
• The law must be applied equally and fairly
• All people charged with a crime are innocent until proven guilty
• People are free to criticise the parliament and government
• People are free to seek to influence change in the law.
• Trials should be conducted openly and transparently and parties must be given the opportunity to present their case and rebut the other party’s case.

Question 4

Explain fairness (POJ).

Answer 4

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

Examples:
- Legal rights and protections of an accused or plaintiff
- Legal rights and protections of a victim
- Procedural fairness related to the rules of evidence and procedure
- Factors considered in sentencing.

The accused should be able to:
- Have their case heard impartially and objectively
- Understand the court processes
- Have the opportunity to present their defence
- Have the opportunity to rebut (disprove) the prosecution’s case

Question 5

In relation to the principle of justice: fairness - what is the accused entitled to?

Answer 5

The accused should be able to…
- Heard impartially and objectively
- Understand the court processes
- Opportunity to present their defence

Question 6

Explain equality (POJ).

Answer 6

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 all to engage with the justice system without disparity or disadvantage

• All people should be treated equally before the law, with equal opportunity to present their case.
• No person or group should be treated advantageously (or disadvantageously) because of a personal attribute or characteristic.
• Processes should be free from bias.
• Decisions should be made by impartial people.
• The Charter of Human Rights and Responsibilities Act 2006 (Vic) states that every Victorian is equal before the law and is entitled to the law’s protection without discrimination.

Examples of equality within the criminal justice system:
* The use of a judge and jury to decide a case
* The availability of legal representation for people from low socioeconomic backgrounds
* The laws being applied equally

Question 7

In relation to the principle of justice: equality - what is the accused entitled to?

Answer 7

The accused should be…
- Treated equally before the law
- No person treated advantageously/disadvantageously
- Free from bias
- Impartial decisions

Question 8

Explain access (POJ).

Answer 8

All people should be able to engage with the justice system and its processes on an informed basis.

• Access to the criminal justice system means that all people should be able to understand their legal rights and pursue their case.
• This means being able to access the institutions that hear criminal cases (i.e. the courts).
• People need to be able to receive information about cases, processes and possible outcomes from these sources and institutions.

It also means being able to approach institutions that provide:
- Legal advice
- Education; and
- Information and assistance

Examples:
- The availability of criminal processes such as plea negotiations and sentencing indications
- The availability of legal advice and legal representation
- The costs and delays that are associated with a criminal case
- The information available to the accused, victims and the community
- The availability of the physical legal facilities.

Question 9

Explain the introduction to the Criminal Justice System.

Answer 9

• A set of processes & institutions used to investigate and determine the outcomes of criminal cases.
• It includes; the courts, police, criminal pre-trial procedures and sentencing.
• The process must be fair to ensure justice is achieved

Two key purposes of a criminal justice system is to;
1. Decide whether an accused is guilty of an offence
2. Impose a sanction where an accused is found guilty

Question 10

In relation to the principle of justice: access - what is the accused entitled to?

Answer 10

The accused should be able to…
- All people understand their legal rights and pursue their case
- All people have access to institutions
- All people should receive information about cases, processes, and possible outcomes.

Question 11

Explain the Criminal Justice System in Australia.

Answer 11

The Constitution does not provide the Commonwealth Parliament with any law-making powers in relation to criminal law

Criminal matters are determined by each state and territory, therefore there is no central or national criminal justice system

• Commonwealth Parliament do have some jurisdiction over criminal matters, when the issue overlaps with one of their constitutional powers
• Eg., Avoiding paying customs duties or attempting to smuggle drugs through an airport (customs & airports are federal issues)

Question 12

Explain the Parties to a Criminal Case.

Answer 12

Criminal cases involve two parties

1. The STATE
   ‘The Prosecution / Crown’
   - The Office of Public Prosecutions (OPP) works with the Director of Public Prosecutions (DPP) and the Crown Prosecutors to prosecute serious matters on behalf of the state of Victoria in serous matters heard in County or Supreme Courts
   - Police Prosecutors are likely to undertaken this role in minor matters heard in the Magistrates’ Court
2. The ACCUSED
   ‘The person who is alleged to have committed the crime(s)’
   - There can be multiple accused persons in a criminal trial
   - Companies can also be charged with offences such as through workplace health and safety breaches

**Note - the victim is not a party to a criminal case, though they may involved in proceedings. Eg; providing evidence as a witness, or victim impact statement

Question 13

List the Key Concepts in the Victorian Criminal Justice System.

Answer 13

1. Distinction between Summary & Indictable Offences
2. The Burden of Proof
3. The Standard of Proof
4. The Presumption of Innocence

Question 14

Explain Summary Offences.

Answer 14

Summary offences are minor criminal offences that are generally heard in the Magistrates’ Court.

• Minor/less serious offences
• Magistrates’ Court
• Hearing
• No Jury
• Summary Offences Act 1966 (Vic)
• Examples: Drink driving, graffiti, disorderly conduct
• The final hearing where both parties put their cases before a Magistrate is known as a ‘hearing’.
• They are considered to be less serious types of crime, and include offences such as drink driving, disorderly conduct and graffiti related offences.
• There is no right to a jury for summary offences.
• Most summary offences are listed in the Summary Offences Act 1966 (Vic), but are also are listed in various other Victorian statutes and regulations.

Question 15

Explain Indictable Offences.

Answer 15

Indictable offences are serious criminal offences that are heard by a judge (and a jury if the accused pleads not guilty) in the County Court or Supreme Court of Victoria.

• Serious criminal offences
• County or Supreme Courts
• Trial
• Jury (when accused pleads not-guilty)
• Crimes Act 1958 (Vic)
• Examples: Homicide (murder, manslaughter), sexual offences, burglary, culpable driving
• Final hearings are known as trials.
• Examples of indictable offences include homicide offences and drug trafficking.
• Offences in the Crimes Act 1958 (Vic) are indictable offences unless the offence is stated in the Act to be a summary offence.

Question 16

Explain Indictable Offences Heard & Determined Summarily.

Answer 16

A number of indictable offences can be heard and determined summarily. These are indictable offences that can be heard in the Magistrates’ Court as if they were summary offence

• Magistrates’ Court
• Hearing
• No jury
• Criminal Procedure Act 2009 (Vic)
• Quicker, cheaper, reduced penalty
• Examples: Indictable offences punishable by 10 years or less imprisonment
• The Criminal Procedure Act 2009 (Vic) states that indictable offences punishable by imprisonment of 10 years or less can be heard summarily.
• The accused will choose to have an offence heard summarily, because it is quicker and cheaper to have a case heard in the Magistrates’ Court, and the maximum penalty that can be handed down is far less than if it were heard as an indictable offence.
• The court, must agree that the offence is appropriate to be heard summarily.

Question 17

Distinguish between summary and indictable offences.

Answer 17

Question 18

Explain the Burden of Proof.

Answer 18

‘The burden of proof refers to the responsibility of a party to prove the facts of the case. The burden lies with the person or party who is bringing the case’

• In a criminal case, the prosecution holds the burden of proof.
• Sometimes the burden will ‘reverse’ to the accused. This does not occur often.

Burden only reverses when when:
- The accused is pleading a defence
- Eg: self defence

In situations where legislation provides that it is the role of the accused to prove their innocence:
- Eg: an accused is assumed to be in possession of drugs if the drugs are found on their property, the accused has the onus in these situation to disprove possession.

Question 19

Explain the Standard of Proof.

Answer 19

‘The degree to which the case must be proven by the person with the onus/burden.’

• That is, the strength and amount of evidence required to substantiate the claims made.
• In a criminal case this is beyond reasonable doubt.
• This means that the prosecution must present sufficient evidence of a convincing nature so the court (judge or jury) is as satisfied without any doubt that the accused committed the alleged offence(s).

Question 20

Explain the Presumption of Innocence.

Answer 20

‘Every person is presumed innocent until he or she is proven guilty with sufficient evidence by a court’.

• No-one can be found guilty of a crime unless there is sufficient evidence to support this, this is why the accused never holds the burden to prove allegations made against them are untrue.
• This presumption protects individuals from being wrongly accused.

Question 21

Explain how the presumption of innocence is maintained.

Answer 21

The presumption of innocence is maintained through:

• The system of bail when an accused is charged with a crime. Bail should always be granted unless there are compelling reasons to deny release.
• The right is also legally guaranteed in Victoria through the Victorian Charter of Rights and Responsibilities Act 2006 (Vic).
• The right to remain silent in proceedings & police questioning.
• Prior convictions are not revealed until sentencing, not used for determination of guilt.
• The need for a committal hearing before a magistrate before any trial for an indictable offence is heard in a superior court.
• Right to appeal wrongful conviction or harsh sanction.

Question 22

Explain the Charter of Rights and Responsibilities Act 2006 (Vic).

Answer 22

Charter of Rights and Responsibilities Act 2006 (Vic)

• Statute law passed by Victorian Parliament (therefore only applies to Victorian laws and processes)
• Purpose of the charter = protect and promote human rights in Victoria and ensure legislation passed by the Victorian Parliament is consistent with human rights.
• Largely based on the rights outlined in various international treaties and conventions to which Australia is a signatory such as; International Covenant on Civil & Political Rights.

Sections 23 – 27 of the Charter, outline the rights of an accused person in a criminal proceeding.

Question 23

Explain the Rights of an Accused - Overview.

Answer 23

A main source of rights protection for all Victorians, including those accused of a crime, is the Charter of Rights and Responsibilities Act 2006 (Vic)

(Commonly known as as the Victorian Charter of Rights)

Question 24

List the rights available to the accused in the criminal process.

Answer 24

• Right to trial by jury
• Right to be tried without unreasonable delay

Question 25

Explain the right to be tried without unreasonable delay.

Answer 25

Right to be tried without unreasonable delay

• The Victorian Charter guarantees all accused people are entitled to a trial that is free from unnecessary or unreasonable delays.
• The charged against an accused should be heard in a timely manner (efficient).
• Delays should only occur when they are considered reasonable.
• The right is ’free from discrimination’ meaning, prior history, age, gender, disability etc of the accused should not influence whether the right is afforded .

Question 26

Explain the right to trial by jury.

Answer 26

Right to trial by jury

• The jury system provides for a trial by others in the community.
• The jury system provides the opportunity for community participation in the legal process, and for the law to be applied according to community standards.
• The right to trial by jury is not protected by the Human Rights Charter, but rather protected in part by the Commonwealth Constitution, and in part by statute law in Victoria.

Question 27

Explain the Source of Protection - Victorian Statute Law.

Answer 27

• For Victorian indictable offences, the Criminal Procedure Act 2009 (Vic) requires a jury to be empanelled where the accused had pleaded not guilty to the indictable offence.
• There is no right to a jury trial for summary offences.
• If a jury trial is required (i.e. an accused has pleaded not guilty to an indictable offence), then the Juries Act 2000 (Vic) will govern the composition and responsibilities of the jury.

Question 28

Explain the Limitations and problems with s80 – Right to trial by jury.

Answer 28

Limitations and problems with s80 – Right to trial by jury:

There are limits placed upon this right however:
- Only applies to offences against Commonwealth Law, therefore does not apply to crimes against state law
- Only applied to charges of indictment (eg: indictable offences)

Problems/limitations
- Most crimes committed are against state not Commonwealth law
- The Commonwealth Parliament can determine through legislation which crimes are those on indictment

Question 29

Explain the Source of Protection – Victorian Statute Law.

Answer 29

Source of Protection – Victorian Statute Law

• Criminal Procedure Act 2009 (Vic)
• Requires a jury to be empaneled in Victoria where an accused pleads not guilty to an indictable offence
• There is no right to jury for summary offences

Question 30

Explain the Right to silence (long).

Answer 30

The right to silence is protected by common law and by the Evidence Act (VIC) 2008 s.89

The accused has a right to silence which includes an accused person to not have to say or do anything in a criminal case against them. This includes the following protections:
- The accused has a right to refuse to give to answer any questions and does not have to give any information as part of the investigation of a crime
- The accused cannot be forced to give evidence in a criminal trial or answer any questions
- The accused does not need to file any defense or a call a particular witness as part of a trial.

No adverse inferences can be drawn from the fact that a person has not answered any questions or given evidence. This means it should not be assumed that a person is guilty simply because they have failed or refuse to say or do anything in a criminal case.

The right to silence extends to the following types of situations:
- Where an accused later relies on a defense that was not raised earlier - no conclusion should be drawn that the new defense is a new invention or is suspicious because the accused only just raise it
- Where the accused has chosen to answer some questions but not others ( known as selective silence) this cannot be used to conclude guilt.

Question 31

Explain the judge’s role in protecting the right to silence.

Answer 31

Judge’s role in protection right to silence:

• When giving directions to a jury a judge directs the jury that the accused has a fundamental right to remain silent and the jury should not conclude that the accused is guilty because they remain silent.
• The judge must not suggest to a jury that it can conclude the accused guilty because they did not give evidence to a particular question.

Question 32

Explain the right to silence (short).

Answer 32

• Accused right
• Means: an accused person does not need to say or do anything in a criminal case against them to avoid self-incrimination.
• Can refuse to answer questions, not be required to give evidence and not have to call a particular witness.
• No inferences or assumed guilt can be drawn from the accused not doing or saying anything.
• Judge must inform jury not to determine guilt on the accused’s silence
• Protected by = Common law and Statute law - the Evidence Act

Question 33

Explain the exceptions to the right to silence.

Answer 33

Exceptions to right to silence
- For example if the police believe that a person has committed or was about to commit a crime or may be able to assist in the investigation of an indictable offense the person must give their name and address if asked to do so.
- It is not always the case in Victoria that a person could remain silent and that this would not be held against them.

Question 34

Explain a summary of the three rights of an accused.

Answer 34

Question 35

Explain the Victims’ Charter.

Answer 35

In Victoria, the rights of victims are recognised by a number of statutes including the Victims’ Charter Act 2006 (Vic)

The purpose of the charter is to:
- Recognise the impact of crime on victims
- To recognise that victims should be offered certain information during the investigation and prosecution process
- To help reduce the likelihood of additional victimisation resulting from interaction with the justice system.

The Victims’ Charter sets down principles such as:
- Respectful treatment of victims
- Respect for victims’ privacy
- Ensuring victims are given information about a criminal case

Note: Breach of these rights does not entitle the victim to take civil action to enforce them.

Question 36

List the rights available to a victim.

Answer 36

• The right to give evidence using alternative arrangements
• The right to be informed about the proceeding
• The right to be informed of the likely release date of the offender

Question 37

Explain the right to give evidence using alternative arrangements.

Answer 37

• The purpose of alternative arrangements is to try to reduce the trauma distress and intimidation that witnesses may feel when giving evidence.
• This is particularly so in cases involving charges for sexual offences and family violence where the trauma and injuries suffered may be significant and witnesses are a greater risk of suffering secondary trauma.
• To ensure that the witness is protected from unnecessary contact with the accused, the court can make alternative arrangements to assist witnesses in giving evidence.

The court can direct alternative arrangements for:
- A sexual offence
- A family violence offence
- An offence for obscene, indecent, threatening language/behaviour
- Sexual exposure in public.

Types of arrangements include:
- Witness may give evidence from somewhere other than the courtroom (e.g. through closed-circuit TV)
- Screens may be used to hide the accused from view
- A support person may be chosen by the witness when giving evidence
- Only certain persons may be allowed in court during giving of evidence
- Legal practitioners may be required to dress casually

Question 38

Explain Improper questions.

Answer 38

• The Evidence Act gives the power to the court to disallow (prohibit) improper questions when a vulnerable witness is being cross-examined.
• The power to disallow improper questions is available to the court in any type of case.

Improper questions include questions that are:
- Confusing
- Harassing
- Intimidating
- Offensive
- Humiliating

Question 39

Explain the right to be informed about the proceedings.

Answer 39

• The Victims’ Charter recognises that persons who are affected by crime are ‘entitled to certain information about the proceeding and about the criminal justice system’.
• The Charter requires investigatory agencies, prosecuting agencies and victims’ services agencies (police officers, the DPP & the Victims of Crime Commissioner) to provide: clear, timely and consistent information about support services, possible compensation entitlements and legal assistance available to these persons.

The Victims’ Charter requires an investigatory agency
- E.g. a body which conducts a criminal investigation such as the Victoria Police

• To inform a victim, at reasonable intervals, about the progress of an investigation into a criminal offence.

This information does NOT have to be given if:
- It may jeopardise (harm) the investigation; or
- The victim chooses not to receive that information.

Once a prosecution has commenced, the
Victims’ Charter requires the prosecution give the victim the following information:
- Details of the offences charged
- If no offence is charged, the reason why
- How the victim can find out the date, time and place of the hearing of the charges
- The outcome of the criminal proceeding (including any sentence given)
- Details of any appeal.

• The victim must be told they are entitled to attend any court hearing

The purpose of these requirements is to recognise that victims may wish to be kept informed about a criminal case that has affected them.

Question 40

Explain the right to be informed of the likely release date of the accused.

Answer 40

A person who is a victim of a criminal act of violence may apply to be included on the Victims Register. This right is contained in the Victims Charter s17

• Rape and other sexual offences
• Aggravated burglary
• Kidnapping
• Stalking
• Child stealing
• Offences involving assault or injury punishable by imprisonment
• Culpable driving causing death
• Dangerous driving causing death or serious injury
• Failing to stop after a motor vehicle accident causing death or serious injury

A person who is registered on the Victims Register may receive certain information about an offender who has been imprisoned, including:
- Their likely date of release; and
- Their release on parole (if applicable).

• The information must be provided at least 14 days before the release of the prisoner.
• This is likely to be sought by the victim where they have suffered violence from that person.

Other rights may be available to victims on the Victims Register, including:
- The right to know the length of the sentence
- The right to be told if the offender escapes from prison
- The right to make a submission if the offender may be released on parole