Unit 3 Outcome 1 Flashcards
Access (Criminal) Definition
individuals in society - including accessed persons, victims & witnesses - having an ‘understanding of legal rights and an ability to pursue their case’
Fairness (Criminal) Defintiion
fair legal processes are in place, and all parties receive a fair hearing
Equality (Criminal) Definition
all people treated equally before the law, with an equal opportunity to present their case
Burden of Proof - Definition
Which party is responsible to prove the facts of a case
Standard of Proof - Definition
Strength of evidence required to support a case
Indictable Offences
Serious Criminal Offences
Tried by a judge and jury in a higher court
Severe Sanctions
Summary Offences
Minor Criminal Offence
Tried in the Magistrates Court
Minor Sanctions
Presumption of Innocence (+section)
guarentee to all accused persons that they are innocent until proven otherwise
Protected in section 25 of the Charter of Human Rights and Responsibilties
Rights of the Accused (x3)
- Right to be tried without unreasonable delay
- Right to a fair hearing
- Right to a trial by jury
Right to trial by jury (+legislation/section of constitution, circumstances)
Right to be tried by an unbiased jury composed of the accused persons peers.
Protected by Criminal Proceedure Act and Section 80 of the Consitutiton
Only applies to indicatable offences and when the accused has not plead guilty
Right to a fair hearing (+ section/act)
Right of an accused person to have their case heard fairly, publicly and presided over by a competent unbiased and independent court
Protected in Section 24(1) of the CoHRaRA
Right to a fair hearing - examples (x3)
- consistent rules of evidence
- ability to cross-examine witnesses to test accuracy of evidence
- accused is allowed to present a defence
Reasons to exclude someone from a public trial
If they will detract attention away from the proceedings or intimidate/distress a witness
Right to be tried without unreasonable delay (+ section/act)
Right of an accused person to have their case determined in a timely fashion - unless there are reasons why their case should be delayed
Protected by Section 25(2)(c) of CoHRaRA
Factors to determine the unreasonableness of the delay (x6 + the case that it came from)
- Length of Delay
- Reason for Delay
- Complexity of the case
- Case backlogs in court
- Availability of resources
- Impact on the victim and the accused
Shown in R v Upton
Victims Rights
- Right to give evidence as a vulnerable witness
- Right to be informed about proceedings
- Right to be informed of the likely release date of the offender
Right to be informed of the likely release date of the accused - victims register (+ things the victims register will advise of)
Government record of all victims of serious crimes - those on the list will be notified about the likely release date of the offender (given in multiple languages).
serious crimes e.g. assault, armed robbery, murder
victims register will advise victims of:
- length of offenders sentences
- earliest possible release date
- whether the offender applies for/is released on parole
- if the parole is cancelled
Right to give evidence as a vulnerable witness - accommodations that can be made
- giving evidence by CCTV
- giving evidence behind a screen
- individuals (that could indimitate the witness) being barred from entering the courtroom
- court preventing parties from asking improper questions (e.g. misleading, insulting, confusing, sterotypical)
- if the accused is representing themselves, not allowing the accused to question the witness
Right to give evidence as a vulnerable witness (+ condition)
When someone is considered ‘vulnerable, certain arrangements, deemed allowable by the court, should be made to accommodate them.
only is applicable if the accused has plead not guilty
Right to be informed about the proceeding
provides that victims of a crime to be knowledgeable about the case in which they are involved in.
Information provided by OPP and VicPolice
Right to be informed about proceedings - information contained (x4)
- offences the accused has been charged with
- if the charges were withdrawn or changed
- key developments in the case
- outcomes of a trial (sanction/verdict)
Right to be informed of the likely release date of the accused
Provides that victims of some crimes will be notified about the likely release date of the offender
Right to give evidence as a vulnerable witness - definition of vulnerable
Those considered to be easily impressionable (to the point that evidence could be compriomised) are considered vulnerable.
Also those who:
- under the age of 18
- suffer from a mental disability
- victim of a sexual offence
- victim of family violence
VLA
Victorian Legal Aid
Government funded agency that provides free legal advice and information regarding a range of disputes
Role of the VLA (x4)
- publishing information
- providing free initial legal advice
- providing funds to engage legal representation
- providing duty lawyers
CLC
Community Legal Centres
Not for profit, community based organizations that provide free legal advice, casework and information to their local communities
CLCs are independent, and thus all provide different services
Role of CLC’s (x3)
- information, legal advice and minor assistance
- Legal casework services
- legal representation in a small number of cases
CLC - who works there
- lawyers employed by the CLC
- lawyers/law students who donate their time to provide legal assistance
Committal Proceedings
Committal Proceedings are hearings to ensure that jury trials are only conducted if there is a reasonable chance the accused person will be found guilty.
Used to determine if a prima facie case exists (prima facie - on the face of it)
Only used for indictable offenses
Magistrate does not decide if the accused is guilty
DPP can override them if they wish
Reason: jury trials come with significant costs and take a long time to conclude.
Committal Proceedings - hearing
Conducted in magistrates court
Prosecution provides a handup brief (written-form) which contains their case
At the conclusion, if the magistrate decides there is enough evidence - the trial continues, if the magistrate decides there isnt - the accused is dismissed
Purposes of Committal hearings (x5)
- Determine whether there is evidence of sufficient weight to support a conviction (saves the court time/money/stress for accused etc)
- determine how the accused plans to plead
- determine if the charge can be determined summarily
- ensuring a fair trial
- allow the accused to be aware of the case against them (and potentially launch a defence)
Committal Proceeding - hearings can also contain (x3)
- accused applying for bail
- accused asking for permission to x-examine the prosecutions witness
- hearing what the accused will plead
Sentence indications - outcome of trial
after the SI has been given, if the accused pleads
Not guilty:
- SI cannot be used as an indicitation of guilt
- a new judge must be used for the trial
- the sentencing judge is not bound by the SI
Guilty:
- the court cannot impose a more severe sanction than given
Sentence indications - purpose (x2)
- put the accused in a better position to make the decision to plead guilty
- reduce the number of cases where the accused pleads guilty late in proceedings
Sentence Indications - appropriateness (x2 approp, x1 not approp)
appropriate when:
- the accused has applied
- the prosecution consents
not appropriate when:
- the court does not have sufficient information about the impact on the victim
Plea Negotiations
discussions between the crown and the accused.
the accused may agree to plead guilty in exchange for:
- withdrawal of some charges
- reduction in the severity of the charge (murder to manslaughter)
Plea Negotiations - purposes/benifits (x3)
- speed up proceedings
- avoid the stress and trauma associated with a trial
- secure a conviction in cases where witnesses may be reluctant to give evidence
Plea Negotiations - appropriate when (x3)
- accused is willing to plead guilty
- prosecution believes that some evidence/witnesses may be inadmissible or its accuracy may be questioned
- obtaining information that will provide closure to a victims family (location of a body)
Plea negotiations - not appropriate when (x3)
- the accused is not willing to plead guilty
- the alleged offending is serious enough that a conviction for lesser charges would not be in the publics interest
- the victim opposes such an agreement (however - its up to the prosecution to make the final decision)
Sentence indications
Statement by the court that states whether a guilty plea will or will not result in an immediate prison term
Conducted before a trial starts, after the indictment has been filed.
Sentence indications - multiple indications
multiple SI can be given if:
- change in circumstances
- these changes are likely to affect the previous SI
Court Hierarchy
refers to the arrangement of courts from the least formal and superior to the most formal and the most superior
Appeals
When a matter is heard for a second (or more) times.
Party seeking the appeal needs to prove they have the grounds to appeal. Appeals are not automatic rights
Without a court hierarchy, appeals would not be possible
Appeals - Reasons (x3)
- Sentence - appealing the sentence
- Law - appeal the application of the law
- Conviction - appealing the guilty verdict on a matter of fact
Specialization
refers to the court staff and judges developing expertise in particular criminal disputes - as a result
Responsibilities of the Parties
to present their case to the court
Responsibilities of the parties - examples (x3 prosecution, x4 accused)
Prosecution:
- call all relevant witnesses (cannot pick and choose witnesses)
- communicate with victims
- if the accused is found guilty, make appropriate submissions on the appropriate sanctions
Accused:
- enter a plea of guilty/not guilty
- decide what witnesses to call
- decide how to defend themselves
- if they are found guilty, give the court a plea of mitigation
Titles of Judges
Magistrates Court -> Magistrate
County Court -> Judge
Supreme & High Court -> Justice
Responsibilities of Legal Practitioners - examples x3
- Opening and closing address
- presenting case to judge and jury
- if the accused person is convicted, make submissions about the appropriate sanction
Responsibilities of the Jury
to deliver verdicts in the county/supreme courts
Responsibilities of the Jury - Examples (x5)
- to select a foreperson
- to be objective
- listen to the proceedings
- determine the verdict
- keep statements made in the jury room confidential
Responsibilities of Legal Practitioners
To represent the parties - they have legal training
Solicitor - prepares legal documentation
Barrister - represents the party in court
Responsibilities of the Judge
Appointed to conduct hearing/trials and resolve disputes
Responsibilities of the Judge - examples (x4)
- apply the rules of evidence
- adjudicate without bias or preconcived notions
- give rulings on points of law
- determining the sentence
Jury makeup
12 people, representing a cross-section of society, randomly selected from the electoral role
Purposes of Sanctions x5
Rehabilitation
Punishment
Deterrence
Protection
Denunciation
Rehabilitation (+ impact + arguments against)
a sentence that attempts to break the cycle of criminal behaviour.
Impact on sentencing: courts attempt to address the underlying factors (drug addictions, mental illness) when sentencing
Some criminologists believe that individuals ‘criminality’ is instinctive and cannot be shaped by society. Also very expensive
Punishment (+ impact + reasons)
Designed to ensure that the offender pays for the impact their crime had on victims and society
Impact: Severe Sanction
Why Punish:
- adequate retribution for victims
- ensure that victims/families do not feel they need to get revenge themselves
Denunciation (+ impact)
publicly condemn the offenders criminal behaviour.
Highlight the extent to which the offender has violated the moral and ethical standards of society.
Impact:
- more severe sanction
- comments will typically explain the extent of the courts outage and condemnation
Protection (+ impact + reasons)
Ensures that offenders who pose a significant risk to the community are removed from the community.
Why Protect:
- ‘greatest amount of good for the greatest number of people’
- depriving a dangerous offender for the protection of the wider community
Impact:
- imprisonment over a CCO or fine
- longer period of imprisonment
Rehabilitation (+ impact)
a sentence that attempts to break the cycle of criminal behaviour.
Impact on sentencing: courts attempt to address the underlying factors (drug addictions, mental illness) when sentencing
Fines (+ how they work)
Monetary payments that the court will order the offender to make as a sanction for a criminal offence.
Legislation states for each offence a maximum penalty that can be imposed.
Fines are listed in Penalty Units.
Majority of cases in the Magistrates are resolved using a fine
Fines - Factors that set the size of the fine (x3)
- Purpose the court is wishing to achieve
- Aggravating or Mitigating Factors
- Offenders ability to pay
Fines - Purposes of Sanctions
Punishment ACHIEVED:
- Offender is unable to buy goods and services they would have bought, QoL decreases
- Fines are usually paid in the short term -> consequence is felt quickly
- Court can set the fine based on the ability of the offender to pay
Punishment NOT ACHIEVED:
- legislated maximum fine may not be high enough to punish wealthy offenders
Deterrence ACHIEVED:
- economic loss discourages the offender from reoffending (specific)
- economic loss discourages others from offending (general)
Deterrence NOT ACHIEVED:
- Fines for summary offences are not often published, limiting the ability of general deterrence to be achieved
- legislated maximum may not be high enough to discourage wealth offenders
Protection NOT ACHIEVED
Rehabilitation NOT ACHIEVED
Denunciation ACHIEVED:
- if the court imposes a large fine, the disapproval can be communicated
Denunciation NOT ACHIEVED:
- maximum fine may not be high enough to send a message
- court will not impose a fine so high the offender cannot pay
- ability of denunciation may be limited
CCO (+ components)
Community Corrections Order - sanctions the offender serves whilst in the community.
Range of time: run for a period of time, as set by the judge, limited to 5 years
Conditions: conditions will be attached to address the underlying factors (drug rehab, anger management, staying away from a particular location)
CCO - Purposes of Sanctions
Punishment ACHIEVED:
- Restricts offenders movement
- Community Service
Punishment NOT ACHIEVED:
- CCO might not punish the offender sufficiently - victims may feel that justice has not been done
Deterrence ACHIEVED:
- inconvenience of a CCO could discourage the offender from reoffending
- specific deterrence can be achieved through flexible conditions for the offender
Deterrence NOT ACHIEVED:
- not a serious sanction
Protection ACHIEVED:
- offenders can be restricted from locations
- conditions can include bans of alcohol and curfews
Protection NOT ACHIEVED:
- offender remains in community and can ignore the CCO
Rehabilitation ACHIEVED:
- addresses underlying issues
Denunciation NOT ACHIEVED
Imprisonment (+ types of sentences)
when an offender is held in custody for a period of time.
Types:
- Concurrent - multiple sentences, served at the same time
- Cumulative - multiple sentences, one after another
- Aggregate - single sentence imposed for multiple offences
- Life sentences - imprisonment that lasts the rest of natural life
- indefinite sentences - imposed until the court believes they are not a danger to society
Imprisonment - Purposes of Sanctions
Punishment Achieved:
- offender is placed in harsh environment
- loses contact with friends/family/job
Deterrence Achieved:
- offenders should be discouraged from committing the same crime
Deterrence Not Achieved:
- 40% of people reoffend after being released
- many crimes are committed in the heat of the moment - people dont consider possible prison sentences
Protection Achieved:
- offender removed from society
Protection Not achieved:
- offenders can reoffend after being released
Denunciation Achieved:
- Harshest sentence
Rehabilitation Achieved:
- some prisons can address underlying issues
Rehabilitation Not Achieved:
- need for these services exceeds services provided
Impact of Guilty Plea
- Mitigating Factor
- No need for trial
- no need for witnesses to give evidence
- If SI given - max sentence
Factors that affect the Principles of Justice (Criminal) x3
Costs
Time
Cultural Differences
Costs as a factor that affects the principles of justice (sources x3, alleviations x3)
Accused persons often face high costs in defending a criminal charge
Sources:
- Legal Representation Fees
- Witness Fees
- Appealing to a higher court
Alleviations:
- VLA
- CLC
- Committal hearings - reduce the cost of a trial
Time as a factor that affects the principles of justice (undesirable because x5, sources x4, however x3)
Undesirable:
- For victims of crimes
- those giving evidence
- community remains at risk if the accused individual remains in the community
- awaiting trial with an outcome unresolved is stressful for an accused person
- criminal trials often rely on oral evidence -> memories fade over time, accuracy can decrease
Sources of delays:
- court backlogs
- time taken to appeal judgements and sentences
- hung juries or mistrials
- empanelling juries is time consuming
however:
- expedited trials
- fewer jury trials
- committal hearings - reduce the time taken
Cultural Differences as a factor that affects the principles of justice ()
different groups may have issues engaging with the legal system
Factors considered in sentencing
Aggravating Factors
Mitigating Factors
Guilty Pleas
Victim Impact Statements
Aggravating Factors (x4 examples)
Factors that render the offending more serious
These factors entice the courts to impose a more severe sanction
Factors include:
- Premeditated Crime
- Crime motivated by hatred for a particular group
- The offender has prior convictions for similar offences
- victim was vulnerable
Mitigating Factors (x5 examples)
Factors that make the offender less culpable
these factors entice the court to impose a less severe sanction
Factors include:
- genuine remorse
- crime was provoked
- the age of the offender
- limited criminal history
- traumatic personal history
Guilty Pleas
A full admission by an accused person of an offence that theyve been charged with.
Removes the need for a trial
Court regards it as a mitigating factor (community is saved the time/cost/stress of a trial)
Victim Impact Statemnet
A written or verbal statement given to the court about the impact of an offence.
Can include physical, emotional, mental and/or financial impacts as a result of the offence.
The purpose of a VIS is to help inform the court of the severity of the offence.
Can act as a mitigating/aggravating factor
