Unit 3 AOS1 - The Victorian Criminal Justice System Flashcards
Examples of Commonwealth offences
Terrorism, people smuggling and espionage
What is a summary offense
Summary offences are minor crimes that are heard in the Magistrates court
Examples of summary offences
Drink driving, jay walking and minor assaults
Where are summary offences heard
Summary offences are heard in the Magistrates court
How do you know if an offence is a summary offence
- It is heard in the magistrates court
- It is listed in the summary offences act 1966 (vic)
What is an indictable offence
Indictable offences are serious crimes
Examples of indictable offences
Murder, robbery and sexual assault
Where are indictable offences heard
Indictable offences are heard in the county or supreme court
What act are indictable offences listed under
Crimes act 1958 (vic)
What is it called when a summary offences goes to court
A hearing
What is it called when an indictable offence goes to court
A trial
What is an indictable offence heard summarily
An indictable offence heard summarily is when an indictable offence is heard in the magistrate’s court as a summary offence
What determines whether an indictable offence can be heard summarily
- If the statute allows (eg: the criminal procedures act 2009 (vic) outlines that a robbery under $100,000 can be heard summarily)
- The courts agree that the offence is appropriate to be heard summarily
- The accused agrees to have their crime heard summarily
Sanctions given in the magistrates court
- Adjourned undertaking (with or without a recorded conviction)
- Fines
- Community corrections orders (CCO)
- Imprisonment (maximum of 5 years and 2 years for a single offence)
What is a committal hearing
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.
Purposes of committal hearings
- Ensure that only strong cases with sufficient evidence proceed to trial
- Allows the accused the opportunity to enter a plea after learning about the prosecutions case against them
- Ensure a fair trial by making sure that the prosecution discloses their case to the accused
- Provides the accused the opportunity to test the prosecutions case through cross examining witnesses
What is the burden of proof
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
When is the burden of proof reversed
- If the accused Defense for their actions is mental impairment
- Possession of an illegal suspect range in their property and cannot demonstrate to the court on the contrary
What is the standard of proof
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”
What is the presumption of innocence
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
In what legislation is the presumption of innocence listed
Charter of human rights and responsibilities act 2006 (vic) as well as some common law precedents
How is the presumption of innocence upheld
- The accused can apply for bail unless they are considered a danger to themselves or others
- For indictable offences, a committal hearing must take place whereby the prosecution must demonstrate that there is sufficient evidence against the accused
- Prior convictions cannot be revealed until sentencing
- The police must reasonable believe that a person has committed a crime before arresting them
- An offender had the right to appeal a wrongful conviction
What are the three rights available to the accused
- The right to be tried without reasonable delay
- The right to silence
- The right to a trial by jury
The right to be tried without reasonable delay means…
- The accused is entitled to have their charges heard in a timely manner
- There may be natural delays which occur but it must not be unreasonable.
- The accuse must be brought to trial as quickly as possible
- Timeframes are included - three months for a committal mention for sexual offences and six months for nonsexual offences.
- What constitutes reasonable is not defined
In what statute is the right to be tried without reasonable delay listed
Sections 21 and 25 of the charter of human rights and responsibilities act 2006 (vic)
The right to silence
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
In what legislation is the right to silence enshrined in
The evidence act 2008 (vic) (It states that negative inferences cannot be drawn should the accused refuse to answer)
What protections ensure that the right to silence is upheld
- The accused can refuse to answer any questions and does not have to give information as part of an investigation of a crime
- The accused cannot be forced to give evidence in a criminal trial or answer. Any questions
- The accused does not have to file a defence or call a particular witness
What exceptions are there to the right to silence
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
The right to trial by jury
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
In what legislation is the right to trial by jury enshrined in
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
Constitutional right to a trial by jury
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
What is a victim
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
What legislation outlines the key principles in relation to victims
The victims charter 2006 (vic)
What does the victims charter act 2006 (vic) outline
- Recognise that victim should be offered certain information during an investigation
- Produce the likelihood of secondary victimisation (being traumatised by the legal system after having already been traumatised by the crime)
- Identifies the primary victim (a person who has suffered direct injury as a result of the crime)
- The vulnerability stemming from victims that are a young age or with certain disabilities
What are the three rights available to a victim
- The right to give evidence using alternative arrangements
- The right to be informed about the proceedings
- The right to be informed of the likely release date of the offender
The right to give evidence using alternative arrangements
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
What legislation is the right to give evidence using alternative arrangements enshrined in
Criminal procedure act 2009 (vic)
What offences allow the right to give evidence using alternative arrangements
- Sexual offences
- A family, violence offence
- And offensive, obscene, indecent, language, or threatening behaviour
- Offence of sexual exposure
Arrangements available, when exercising the right to give evidence using alternative arrangements
- To testify in a separate room via video link
- To request a screen to be put up
- To have a support person or dog beside you when testifying
- To request that legal representation not wear formal cloaks.
- To request that legal representation for The accused not ask questions directly to the victim
The right to be informed about proceedings
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
What things must the victim be informed about when exercising the right to be informed about proceedings
- Details of the offence, the accused charged with
- The date, time and place of the hearing of charges
- The outcome of criminal proceedings, including sentence imposed
- Why lesser or fewer charges have been laid
- Details of any appeals
Exceptions to the right to be informed about proceedings
Victims are not entitled to any information that might put the investigation at risk or if they choose not to receive that information
The right to be informed about the release date of the accused
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
What crimes does the right to be informed about the release date of the accused apply to
- Rape and other sexual offences
- Aggravated burglary
- Kidnapping
- Stalking
- Child stealing
- Culpable driving causing death
- Dangerous driving, causing death or serious injury
- Failing to stop after a motor vehicle accident, causing death or serious injury
- Offences involving assault or injury punishable by imprisonment
