UNIT 3 AOS1 - SAC 1b (criminal) Flashcards
Define Victoria Legal Aid (VLA).
VLA is a government-funded agency that provides free legal advice and information regarding a range of legal disputes (including criminal law matters, family law disputes, Centrelink matters and child protection issues).
- They do not have unlimited funding so they prioritize the most vulnerable.
Explain the role/types of assistance of Victorian Legal Aid (VLA).
Free legal information: VLA’s website has free resources and information about criminal cases and other legal material.
Free legal advice: Advice is given in person, through a video conference or over the phone.
Free duty lawyer services: A duty lawyer is a VLA lawyer who is in court on a particular day and can help people who are in court on that day. These lawyers are only available in the Magistrates’ Court and Children’s Court and not for indictable trials.
Grants of legal assistance: VLA can grant legal assistance to people who cannot afford a lawyer.
List who would be suitable for different types of assistance provided by VLA.
- Free legal information - people charged with minor crimes.
- Free legal advice - people charged with offences.
- Free duty lawyer services - information, advice or legal representation in the Magistrates’ court.
- Grants of legal assistance - accused persons who are unable to afford representation and meet VLA’s merits test.
Explain the eligibility for Victorian Legal Aid (VLA).
- VLA has funding restrictions
- Only disadvantaged people facing serious charges will receive a grant of legal assistance.
- This leaves many disadvantaged people unable to receive assistance
List the strengths and weaknesses of Victorian Legal Aid (VLA).
STRENGTHS:
- VLA’s website offers free legal information to all, including victims, regardless of income or means, covering court processes, rights, and basic principles.
- Free legal advice and assistance for eligible individuals in need, including those in custody and First Nations peoples with the aim of prioritizing the most vulnerable.
- VLA offers free information in over 30 languages and its staff are fluent in multiple languages and can arrange for a free interpreter.
- VLA offers legal advice through online tools like chat, telephone services, and websites, catering to regional, rural and remote areas.
WEAKNESSES:
- VLA’s website’s free information may not be sufficient for certain individuals, especially those charged with indictable offences who cannot access legal services through other means.
- VLA must allocate resources efficiently and target those in need, ensuring legal representation and defence for those unable to afford lawyers and victims of a crime.
- VLA’s ability to meet service demand depends on continued funding, and an increase in demand or budget constraints could reduce eligibility for legal aid.
- VLA’s effectiveness depends on whether the accused and victim of a crime are aware of its existence and have access to free information.
Define a Community Legal Centre (CLC)
CLCs are ‘not-for-profit, community-based organisations that provide free legal advice, casework and information and a range of community development services to their local communities’.
- Rely on volunteers and funding
Often provide assistance to accused persons:
- Cannot afford a legal representative
- Do not meet VLA’s strict criteria
Define a generalist Community Legal Centre.
24 Generalist CLCs around Victoria, provide broad legal services to people in a particular geographical area eg. Barwon Community Legal Service.
Define a specialist Community Legal Centre.
Specialist CLCs around Victoria, provide support to a particular group of people or area of law eg. YouthLaw provides free legal services for people under 25.
Explain the types of assistance of a Community Legal Centre (CLC).
Offer basic legal information: CLCs can provide basic legal information on a day-to-day basis.
Initial legal advice: CLCs can provide legal advice and information on preliminary matters. CLCs can provide free legal advice without an appointment. People can access legal advice via phone.
Duty lawyer assistance: Duty lawyers can provide advice or representation for urgent matters that will be completed within one day.
Legal casework: Although rare, a CLC can take on criminal matters that require ongoing legal assistance. However, this does not apply to indictable offences.
Explain the eligibility for a Community Legal Centre (CLC).
Each CLC has its own eligibility criteria for assisting an accused, and for how much assistance they can provide. CLCs will generally consider the following factors:
- The type of legal matter the person needs help with.
- Whether other assistance is available (such as through VLA).
- Whether the person has a good chance of success.
- Whether the accused can manage the case without help.
- Whether the CLC is available to assist.
Define/explain plea negotiations.
- Discussions between the prosecutor and accused about the charges.
- ‘Without prejudice’ basis - any offers made cannot be used against them.
- Prosecution offers incentive in return for them pleading guilty.
- EG. murder can be negotiated ‘down’ (manslaughter etc.)
Agreements:
- Accused pleads guilty to lesser or fewer charges
List the purposes of plea negotiations.
- To resolve a criminal case by ensuring a plea of guilty to a charge that adequately reflects the crime that was committed.
- To achieve a prompt resolution to a criminal case without the cost, time, stress, trauma and inconvenience of a criminal trial.
Discuss the appropriateness of plea negotiations.
APPROPRIATE:
- When there are issues with the availability, reliability or willingness of crucial witnesses – particularly victims.
- When there are issues with the admissibility of key pieces of evidence
- When the original charge by the police was incorrect.
INAPPROPRIATE:
- In high profile cases, due to the lack of transparency around negotiations.
- When the victim does not wish for lesser charges to be considered, although the prosecution has no obligation to follow their wishes.
List the strengths and weaknesses of plea negotiations.
STRENGTHS
- Save community costs by avoiding full trials or hearings.
- Provide prompt determination of criminal cases and increase public confidence in the legal system.
- Victims, witnesses and their families, and the accused’s family are saved the trauma, inconvenience and distress of the trial process (relive events).
- Accused receive a reduced sentence.
- Agreement reflects the criminality of the offender.
- Certainty in outcome for all parties.
WEAKNESSES:
- Accused may be ‘let off’ or get a lenient sentence that does not reflect the crime.
- Accused people may feel pressured into accepting a deal even if the evidence is not strong.
- May be seen as the prosecutor avoiding the need to prove the case beyond reasonable doubt.
- Negotiation is not disclosed and can be held privately.
- If negotiations do not succeed parties may be more advantaged.
Define/explain a court hierarchy.
‘…the arrangement of courts in order for least superior to most superior.’
- Ranked based on their ‘status’ and ‘authority
- Lowest court (Magistrates) hears a high volume of less serious, less complex matters and these are resolved relatively quickly.
- Further up the hierarchy, the few cases each court resolves but the more complex and time-consuming
Define court jurisdiction.
The power/authority a court has to determine a matter
Jurisdiction: ‘Refers to the power or authority that belong to someone/something’
Define original jurisdiction.
When a matter is taken to court for the first time, the court is sitting in/using its original jurisdiction (power).
Define appellate jurisdiction.
When a party is not satisfied with the outcome of their case, they can appeal to a higher court given they have sufficient grounds.
When a court is hearing an appeal (reviewing a decision for a lower court) they are sitting in/using their appellate jurisdiction (power)
List the reasons for a court hierarchy.
- Appeals
- Specialisation
Explain appeals in relation to court hierarchy.
- Someone is not satisfied with the outcome of their case they can appeal.
- Reviewed by a higher court.
- Provides fairness & allows mistakes to be corrected.
Without a hierarchy of courts, there would be no higher courts to appeal to, thus a hierarchy is needed to allow for the appeals process to occur.
Explain specialisation in relation to court hierarchy.
The courts’ judges and staff developing expertise in particular criminal disputes and criminal procedures.
- Courts only hear cases in their jurisdiction
- Specialists develop expertise
- Best equipped to deal with the issues presented
- Dealt with efficiently & quickly
- Specialist courts such as Children’s & Coroner’s courts also established for this reason
Explain specialisation for each court in the hierarchy.
Supreme Court (Court of Appeal):
- Specialises in determining criminal appeals in indictable offences
- Has expertise in sentencing principles
Supreme Court (Trial Division) :
- Specialises in dealing with the most serious indictable offences
- Has expertise in sentencing principles
County Court:
- Specialises in dealing with indictable offences (not murder-related)
Magistrates Court
- Specialises in summary offences
- Specialises in committal proceedings.
Children’s Court and Coroners Court:
- Specialise in crimes involving young people (Children’s Court)
- Specialises in investigating deaths and fires
with suspicious circumstances (coroners Court)
List the strengths and weaknesses of a court hierarchy.
STRENGTHS:
- Allows courts to specialise in different types of criminal matters, which allows more efficient processes or resources based on the cases they hear.
- Allows appeals to be made by both parties if there is an error in the original decision.
WEAKNESSES:
- 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 offence, where the case will involve both the Magistrates’ Court (for a committal proceeding) and one of the higher courts [for the trial.
- 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.
List the key personnel in a criminal trial.
- The judge
- The Jury
- The Parties (Prosecution, Defence)
- The Legal Practitioners (Barrister, Solicitor)
Explain the responsibilities of the judge/magistrate.
- Must impartially and must have no apprehended bias
- Manage the trial
- Manage the admissibility of evidence and rules of procedure
- Attend to jury matters; directions
- Sentence the accused
ROLE: ensure court processes and procedures are followed in alliance with strict rules of evidence and procedure eg. determining the admissibility of evidence.
SENTENCING
- Independent and impartial umpire, unable to assist either party
- Decide upon questions of law eg. what legislation and precedent is relevant
- Direct the jury
- Clarify issues
List the strengths and weaknesses of a judge/magistrate.
STRENGTHS:
- The judge or magistrate acts as an impartial umpire, overseeing the trial process without overly intervening or assisting either party, ensuring no party is disadvantaged.
- Judges and magistrates oversee hearing processes, ensuring adherence to evidence rules and procedures, and providing equal opportunities for both parties to present their cases.
- Judges and magistrates can assist self-represented accused individuals and adjust trial processes to accommodate vulnerable groups like young people, those with disabilities, or those with mental health conditions.
WEAKNESSES:
- Judges and magistrates, as human beings, may face potential bias in their decision-making, like when they are fatigued.
- Research indicates a lack of diversity in Australian judges and magistrates, with Asian Australians and women underrepresented in higher courts, potentially impacting courtroom comfort and confidence.
- Judges and magistrates, despite their extensive experience, are not allowed to excessively interfere in cases involving self-represented accused individuals.
Explain the role of the jury in criminal cases.
- Listen to and consider all evidence presented in court - alert, notes, determine reliability of witnesses etc.
- Take part in deliberations
- Listen carefully to the judge’s directions
- Remain impartial and objective
Make a unanimous or majority decision (after six hours) whether they are guilty, not guilty or guilty of a lesser offence.