UNIT 3 AOS1 - SAC 1a (criminal) [old]

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 a summary offence.

Answer 11

Minor crimes that are heard in hearings at the Magistrates which disallow the use of a jury.

• Summary Offences Act 1966 (Vic)
• Examples: drink driving, graffiti, disorderly conduct, etc.

Question 12

Explain an indictable offence.

Answer 12

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

• Crimes Act 1958 (Vic)
• Examples: homicide (manslaughter and murder), sexual offences, burglary, culpable driving, etc.

Question 13

Explain an indictable offence heard and determined summarily.

Answer 13

Indictable offences that are heard in hearings with no jury in the Magistrates’ Court as if they were summary offences.

• Criminal Procedure Act 2009 (Vic)
• Quicker, cheaper, reduced penalty
• Examples: indictable offences punishable by 10 years or less imprisonment.

Question 14

Define the burden of proof.

Answer 14

The responsibility of a party to prove the facts of a case, this lies with the person/party who is bringing the case, in a criminal case the prosecution holds the burden of proof.

• May be ‘reversed’ to the accused eg. accused pleads self-defence now they need to prove that was the case

Question 15

Define the standard of proof.

Answer 15

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

• The strength and amount of evidence required to substantiate the claims made.
• Criminal case = “beyond reasonable doubt”

Question 16

What does it mean to prove something “beyond a reasonable doubt”?

Answer 16

By dismissing fanciful possibilities the decision-maker isn’t certain in their decision however, they are satisfied to an understandable extent.

Question 17

Define the presumption of innocence.

Answer 17

Every person is presumed innocent until they are proven guilty with sufficient evidence by a court.

Note: it protects individuals from being wrongly accused.

Question 18

What is the presumption of innocence maintained through?

Answer 18

• System of bail
• Legally guaranteed through the Victorian Charter of Rights and Responsibilities Act 2006 (Vic)
• Right to remain silent
• Prior convictions are not to be revealed until sentencing
• Committal hearing
• Right to appeal

Question 19

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

Answer 19

• Statute law
• Only applies to Victorian laws and processes
• Purpose = protect and promote human rights in Victoria, ensure legislation, and be consistent with human rights
• Sections 23-27 = rights of an accused

Question 20

List the rights of an accused.

Answer 20

• The right to be tried without unreasonable delay
• The right to a trial by jury
• The right silence

Question 21

Explain the right to be tried without unreasonable delay.

Answer 21

• Accused right
• Entitled to a trial free from unnecessary delays
• Heard in a timely manner (efficient)
• Should only occur when they are considered reasonable
• Right is free from discrimination

Question 22

Explain the right to trial by jury.

Answer 22

• Accused right
• Trial by others in the community (providing representation of society)
• Law to be applied according to community standards (community participation in legal processes)
• Protected by = Victorian statute law & Commonwealth Constitution (NOT human rights charter)

Question 23

Explain the right to silence.

Answer 23

• 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 24

Outline the situations the right to silence extends to.

Answer 24

• When an accused later relies on a defence that was not raised earlier
• When the accused answers some questions but not others (selective silence)

Question 25

Outline the exceptions to the right to silence.

Answer 25

• Police require them to provide their name and address when they suspect a crime or may aid in an indictable offence investigation.
• Individuals may not always be allowed to remain silent.

Question 26

Explain the Victims’ Charter.

Answer 26

• Statute = Victims’ Charter Act 2006 (Vic)

Purpose:
- Recognise the impact of crime on victims
- Recognise victims should be offered certain information
- Help reduce the likelihood of additional victimisation

Sets down principles:
- Respectful treatment - victims
- Respect victims’ privacy
- Victims are given information
HOWEVER: a breach of these rights does not entitle the victim to take civil action.

Question 27

List the rights available to a victim.

Answer 27

• 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 28

Explain the right to alternative arrangements.

Answer 28

• Victims’ right

Purpose: reduce trauma, distress, and intimidation that witnesses may feel when giving evidence.

Question 29

List when alternative arrangements can be given.

Answer 29

• Obscene, indecent, threatening language/behaviour
• Sexual offences
• Family violence
• Sexual exposure

Question 30

List the types of alternative arrangements that can be given.

Answer 30

• Give evidence other than the courtroom
• Screens to hide the accused
• Support person
• Only certain persons may be allowed in court
• Legal practitioners dress casually

Question 31

Explain improper questions.

Answer 31

Means: the court’s power to disallow (prohibit) improper questions when examining a vulnerable witness.

Protected by: the Evidence Act

Improper Question:
- Confusing
- Harassing
- Intimidating
- Offensive
- Humiliating

Question 32

Explain the right to be informed about the proceedings.

Answer 32

Means: entitled to certain information about the proceeding and the criminal justice system.

Purpose: to recognise that victims may wish to be kept informed about a criminal case that has affected them.

Victims’ Charter requires:
- Investigatory agencies
- Prosecuting agencies
- Victims’ services agencies

To provide: clear, timely and consistent information about support services, possible compensation entitlements and legal assistance.

Question 33

In relation to the right to be informed about the proceedings. Outline when the information does not need to be given AND what the prosecution is required to give the victim.

Answer 33

Information does not need to be given if:
- May jeopardise (harm) the investigation
- Victim chooses not to receive

Prosecution required to give the victim:
- Details of the offence charged
- If no offence is charged, the reason why
- How the victim can find out the date, time and place
- Outcome of the criminal proceeding
- Any appeal

Question 34

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

Answer 34

Person who is registered on the Victims Register may receive certain information about an offender, including:
- likely date of release
- release on parole

• This right is contained in the Victims Charter section 17.
• Victim of a violent criminal act may apply to the Victims Register
• Information must be given 14 days before the release of the prisoner

Other rights available on the victims register:
- Length of sentence
- Told if the offender escapes
- Make a submission if the offender may be released on parole

Question 35

Which people are considered victims?

Answer 35

People affected by the offence eg. family & witnesses.