Unit 3 Outcome 1 The Victorian Criminal Justice System

Question 1

Victorian Legal Aid
2 things they provide

Answer 1

A low cost, Government funded agency that provides free legal advice to the community;

They provide:
funding to private lawyers to represent clients.
several pamphlets and booklets to improve individuals understanding of the law.

Question 2

who can get vla?

3 test

Answer 2

Everyone can apply however they must complete an online application form which allows eligibility to be determined.

Means Test: This takes into account a person’s assessable income. It also takes into account weekly expenses

Merits Test: Is the case likely to result in a favourable outcome for the Accused or is an appeal likely to be successful.

Reasonableness test: Will the service benefit the individual, and the public or not

Question 3

what types of legal aid are there?

4 types

Answer 3

• Free legal information or advice
• Free duty lawyer services
• Legal funding provided to private lawyers.
• Lawyers that represent a person.

Question 4

does vla assist with fairness?

3 strengths and 3 weaknesses

Answer 4

strengths -
- individual can understand court bettet
- Supplies information such as brochures and websites for those who are not eligible. WhichMay avoid the need to self-represent.
- Provides for a Duty Lawyer if pleading guilty on the day allowing plea to be presented in best possible light.

weaknesses -
- legal aid lawyer has not as much info as private lawyer
- if not eligible, info is general and may not help the situation
- Strict eligibility mean a person may not be eligible even if they cannot afford a private lawyer.

Question 5

does vla assist with equality?

2 strengths and 3 weaknesses

Answer 5

strengths -
- vla is provided to those most vulnerable
- free info given to all people in several languages

weaknesses -
- Many people are not eligible
- It represents the very poor only.
- To use this information the Accused has to be able to read and understand the terminology which can be difficult.

Question 6

does vla assist with access?

2 strengths and 2 weaknesses

Answer 6

strengths -
- free information allows an increase in education and knowledge about the legal system
- If eligible for representation, it very much increases the accused’s ability to present their best case.

weaknesses -
- free information is general and may not need the needs of each individual.
- information is available on-line which can make it difficult for clients with no access to internet

Question 7

community legal centres

Answer 7

An independent, not for profit organisation staffed by both paid and volunteer lawyers.

Question 8

types of clcs

2

Answer 8

Generalist CLC’s – provide broad legal services to people in a particular geographical area (like the Gippsland Legal Service)

Specialist CLC’s – look after a particular group of people like YouthLaw – provides legal assistance for those under 25.

Question 9

role of clcs

3 things they provide and 1 thing they do not

Answer 9

They provide:
- Basic legal information
- Initial legal advice
- Duty Lawyer Assistance

Very few CLC’s provide assistance in indictable matters.

Question 10

do clc provide fairness?

1 strength and 1 weakness

Answer 10

Strengths - Improvises understanding if legal processes and their ability to present case
weakness - Often do not provide representation in indictable matters. Assistance provided is for minor matters.

Question 11

do clc provide equality

1 strength and 1 weakness

Answer 11

strength - Assist those who are disadvantaged with completing forms, free legal advice on phone to overcome issues based on status.

weakness - Limited funding means they can only provide initial assistance only, not ongoing assistance usually.

Question 12

do clc provide access

2 strengths and 2 weaknesses

Answer 12

strengths
-Free advice and information.
-Locations in many places
weaknesses
-Information usually for summary offences.
-In rural areas may not have access to assistance.

Question 13

committal proceedings

Answer 13

Pre trial procedure for indictable offences in magistrates court that is required when accused pleads not guilty. Not in summary because their matters are all dealt with and finalised in magistrates. They are used to decide whether the prosecution has sufficient evidence to support a conviction by jury

Question 14

process of committal hearings

Answer 14

1. filing hearing - magistrates sets out timeline
2. committal mention hearing - short hearing which determines how accused wishes to plea
   either guilty, not guilty or reverse plea

if pleading guilty the matter is adjourned to the appropriate court and committal process ends

if pleading not guilty there is either a committal by way of hand up brief which is given to magistrate who then decides if there is sufficient evidence without cross examination of witnesses.
or
contested committal hearing where judge has chance to cross examine witnesses. accused does not give evidence

Question 15

purposes of committal hearings

3

Answer 15

• see if indictable offence is appropriate to be heard and determined summarily;
• provide opportunity for the accused to plead guilty at the earliest stage
• Allow Accused to properly prepare and present case

Question 16

does a committal procedure provide for fairness?

3 strengths and 1 weakness

Answer 16

strengths -
- helps the Accused prepare their case
- It can allow the Prosecution to withdraw some charges which saves time and ensures a fairer trial
- It allows the Accused to test the strength of the prosecution’s case which can lead to an early plea of guilty

weaknesses -
- Committal hearings are complicated, if Accused does not have representation it can be difficult to manage which may lead to unfairness.

Question 17

does a committal procedure provide for equality?

1 weakness

Answer 17

VLA may not be willing to fund a Committal Hearing leading to the matter needing to proceed by way of a hand-up brief because the person is unable to pay leading to inequality

Question 18

does a committal procedure provide for access?

2 strengths and 2 weaknesses

Answer 18

strengths -
- saved time for higher Courts by filtering out weaker cases that are unlikely to proceed
-It allows the Accused to test the strength of the prosecution’s case which can lead to an early plea of guilty
weaknesses -
- Committal proceedings result in delay in the matter proceeding to trial and as such reduce access.
- They can add to the stress and trauma of victims and their families and as such may result in them not making a complaint in the first place thus reducing access.

Question 19

plea negotiations

3 things they can result in

Answer 19

Out of court discussions between the prosecutor and the accused about the charges against the Accused. This is in both summary and indictable.

They can result in
- the Prosecution withdrawing charges against the Accused,
- changing the charges to a lesser charge
-an agreement that the Accused will plead guilty to fewer charges.

discussions cannot be used in Court if agreement is not reached and negotiations do not determine or have any impact on sentence

Question 20

purpose of plea negotiations

3

Answer 20

• To ensure resolution of a matter by ensuring a plea of guilty which reflects the crime committed
• To allow the criminal justice system to proceed efficiently, economically and effectively
• It provides certainty

Question 21

are plea negotiations appropriate?

3 strengths

Answer 21

• resolves case quickly, reducing stress
• saves significant cost to the State and the Accused.
• It provides an advantage to the accused in that they may receive a lesser sentence

Question 22

are plea negotiations appropriate

3 weaknesses

Answer 22

• The Prosecutor does not have to prove their case beyond a reasonable doubt and so it undermines the principle of innocent until proven guilty
• The negotiations do not need to be disclosed and can be held privately – thus reducing transparency – the public do not know why the charges were reduced.
• An accused may be allowed back in the community earlier posing a danger to others.

Question 23

sentence indications

Answer 23

A sentence indication is given by the Court to the Accused to let the Accused know what sanction is likely to be imposed on them.
Generally, it is to discover whether the Accused is likely to receive a custodial or non-custodial sentence and the likely sentence they would receive.

It is used for both summary and indictable offences

Question 24

when can sentence indications be given in indictable matters?

5 processes

Answer 24

• After committal and once indicted into county or supreme
• The accused has to apply for a sentence indication;
• The court and prosecution has to agree. They can disagree
• The fact a sentence indication was asked for can not be used against the accused if they elect to plead not guilty and proceed to trial.
• It can only be given once.

Question 25

when can sentence indications be given in summary matters

3

Answer 25

• any time in the Magistrates’ Court.
  give an indication of the likely sanction and sentence.
• if Accused pleas not guilty after sentence indication another Magistrate will hear the matter and is not bound by the earlier sentence indication.
• There is no need for the prosecution to consent to this.

Question 26

purpose of sentence indication

Answer 26

An accused often will defer pleading guilty because of fear they may go to jail so a sentence indications give the Accused clarity and some certainty about the likely sentence that will be imposed
this can lead to an early plea which saves Court time, costs, resources, stress and inconvenience of victims and witnesses.

Question 27

are sentence indications appropriate?

3 strengths

Answer 27

• Results in an early plea – benefiting all Court users
• Saves money and resources
• The accused is not bound to accept the indication – providing fairness

Question 28

are sentence indications appropriate?

2 weaknesses

Answer 28

-The judge and prosecution both have to consent to giving a sentence indication in indictable
- The sentence indication is given before the facts of the matter are proven and therefore it may disadvantage an offender if different facts are brought out at trial.

Question 29

purposes of criminal justice system

2

Answer 29

decide guilt
impose sanction

Question 30

fairness

Answer 30

impartial treatment without discrimination.
- requires fair legal processes are in place and all parties receiving a fair hearing
people should understand court processes, have opportunity to present their defence or rebut the prosecutions case

Question 31

equality

Answer 31

All people should be treated equally before the law with equal opportunity to present their case.
no person should be treated more advantageously because of a personal characteristic.
judge must be impartial
use of jury, provision of legal rep

Question 32

access

Answer 32

ability to use the legal system. people need to understand their legal rights, be able to get legal advice, education and assistance about criminal cases

Question 33

distinction between summary and indictable
3

Answer 33

nature of offence (minor/serious)
jury at trial (no/yes)
courts that hear case (magistrates/county or supreme)

Question 34

burden and standard of proof

Answer 34

prosecution has burden. they are the state or opp
standard is beyond reasonable doubt

Question 35

rights of accused 3

Answer 35

• right to be tried without unreasonable delay
• right to trial by jury
• right to fair hearing

Question 36

right to be tried without unreasonable delay

Answer 36

delays should only occur if considered reasonable
charges must be heard in a timely matter, which applies despite personal attributes or prior history however, a child must have their case heard quickly.

Question 37

right to fair hearing

Answer 37

to have their case heard fairly, publically and presided over by a competent, unbiased and independent court.

Question 38

right to trial by jury

Answer 38

jury system gives an opportunity for the community to participate in the justice system. the jury can protect corruption and represent the community’s views and values in their verdict.

Question 39

rights of victims 3

Answer 39

right to give evidence as a vulnerable witness
right to be informed
right to be informed of likely release date of the offender

Question 40

right to give evidence as a vulnerable witness

Answer 40

vulnerable witnesses (victims of sexual assault, domestic violence or children) able to give evidence by alternative means for example giving evidence from different buildings or having a support person present.

Question 41

right to be informed
Info - 3

Answer 41

Charter requires an investigating agency to inform a victim at reasonable intervals about the progress of an investigation
unless:
victim requests not to
or
the disclosure may harm the investigation
Info:
- if charges have been laid
- time and place of hearing
-outcome of hearing

Question 42

what is a victim impact statement

Answer 42

used if the Offender is found guilty before sentencing. It explains to the Magistrate or Judge the impact the crime has had on the Victim and can include:
Emotional impact
Physical impact
Financial impact
Social impact

Question 43

right to be informed of release date of the accused
Info 3

Answer 43

if a person is a victim of a criminal act of violence and is on the victim’s register they may receive info about the likely release date of the imprisoned offender.
Info:
- parole status
- earliest possible release date
- length of sentence

Question 44

who can be on victims register

Answer 44

victims of:
sexual offences
stalking
culpable driving causing death
aggravated burglary
kidnapping

Question 45

why do we need a court hierarchy? 3

Answer 45

• ensure right to appeal
• administrative convenience (prevents delays)
• to allow for the doctrine of precedent (if no hierarchy there would be no superior courts to make laws for the lower courts.

Question 46

Responsibility of a Judge. 3 roles

Answer 46

• must be impartial
• directing the jury
• decide which evidence can be included

Question 47

Do judges provide justice? 3 strengths and their weaknesses

Answer 47

• they are impartial ensuring fairness however they may have an inherent bias or be seen as bias by another party
• Give the jury directions based on law to ensure fairness however jury directions can be complex resulting in an appeal or mistrial and judges cannot overrule a jury decision
• great deal of experience in dealing with law and can provide expertise however they may not be able to assist parties in improving their case.

Question 48

role of jury and amount

Answer 48

The role of the jury is to find the accused either guilty of not guilty based of the standard of proof which is beyond reasonable doubt.
There are 12 jurors or 15 for long trial but only 12 make the decision. They must reach unanimous verdict or after 6 hours, majority verdict

Question 49

3 responsibilities of juries

Answer 49

• attend trial each day
• listen to all facts and evidence and remember and understand it
• deliver the verdict of guilt or innocence of a person

Question 50

3 strengths and their weaknesses of jury in achieving principles of justice

Answer 50

• Provide fairness because they are randomly chosen from the community however jurors may be ineligible to serve on jury so there may not be a cross section
• Bring community values into the law providing equality however they may have their own biases
• Dont give reasons for their decision however they may take matters into their own hands and investigate outside of court.

Question 51

responsibilities of parties - pre trial 3

Answer 51

• Investigating the facts
• Deciding which facts should be brought before the Court;
• What witnesses to call;

Question 52

responsibilities of parties at trial 3

Answer 52

• give opening and closing address and present case
• assist judge with jury matters
• pay cost of their case

Question 52

3 strengths and their weaknesses of parties

Answer 52

• prepare case with suitable evidence however the accused doesn’t have as much resources as the state
• Prosecution assist Court to arrive at truth and therefore presents all evidence. However vital evidence may be missed leading to unjust result.
• Parties are responsible for the costs of their own case. However unrepresented parties can cause delays in proceedings

Question 53

responsibilities of legal practitioners 3

Answer 53

• Have relevant documents prepared for trial
• Present clients case in best possible light
• Give advice to their client

Question 54

3 strengths and their weaknesses of legal practitioners

Answer 54

• Allow the client to present their case in the best possible light however it can be expensive which leads to less access
• cannot mislead the Court however if there is a disparity in experiment, it can lead to unfair outcome for one party.
• Arguments are presented logically which saves time However practitioners with insufficient experience can cause lack of fairness

Question 55

purposes of sanctions 5

Answer 55

• punishment: offender should be punished in a manner that is just taking into account the circumstances of the offending which is necessary so no victims take matters into their own hands.
• protection: keeping the community safe from the offender
  sometimes can only be achieved by a prison sentence
• deterrence: to discourage people from committing the same crime.General: ensuring the public do not commit the same crime as they see the severity of the sanction given.
  Specific: Encourages that offender not to repeat the crime again.
• denunciation: When the Court condemns and criticises the conduct of the offender on behalf of the community.
• rehabilitation: Court focus on the underlying reasons why the offending behaviour occur and attempt to address these so that the behaviour does not occur again. achieved by ccos or imprisonment because of programs

Question 55

fines

Answer 55

A fine is a monetary penalty paid by the offender to the state. When imposing fines, judges should take into account financial circumstances of the offender.

Question 56

do fines achieve purposes of santions?

Answer 56

• Punishment: they require an offender to pay money which can be a very real punishment. However, if the offender is very rich the fine will need to be high enough to punish the offender
• Specific deterrence: discourage the offender from reoffending
• General deterrence: Many people do not speed because they are aware of the financial penalty of speeding
• Denunciation: If a very high fine is given to show strong disapproval of the action.
• Rehabilitation: No
• Protection: Not directly but can achieve it indirectly if the offender is dettered.

Question 57

community corrections order

Answer 57

• supervised sentence intended to be served within the community.
• can include a term of up to twelve months of imprisonment
• supervised by the Department of Justice.
• cannot be given for category 1 or 2 offences

Question 58

compulsory conditions of ccos
3
1 optimal

Answer 58

• not committing another offence punishable by imprisonment,
• not leaving Vic without permission,
• notify of change of address
• remain alcohol free

Question 59

breach of cco results in…

Answer 59

Order can be cancelled and offender can be re-sentenced for original offence as well as penalised for failing to comply with the CCO (additional 3 months in jail or a fine of 30 penalty units).

Question 60

do ccos uphold purposes of sentencing

Answer 60

punishment: yes because it limits freedom but the community does not see ccos as a punishment which is not great general deterrence)
rehab: yes bc ccos provide services to reach the needs of the offender however some offenders may be unwilling to become a better person so forcing them to particpate may not help. offenders in rural areas may also find it difficunt to find services
protection: yes because it keeps offender busy but it is not guaranteed that they will not reoffend while completing order
specific deterrence: less likely to reoffend

Question 61

are ccos appropriate? 3 strengths and their weaknesses

Answer 61

• ccos punitive and rehabilitative so tries to assist the offender not to reoffend however waitlists for treatments can be long
• promotes interests of the offender/community however they are not well understood by public which undermines confidence
• eases prison crowding however public safety can be compromised

Question 62

imprisonment
concurrent/cumulative

Answer 62

most severe, last resort
- concurrent = runs at same time as other offences
cumulative = terms of imprisonment added

Question 63

does imprisonment achieve purposes?

Answer 63

punishment: yes bc removes freedom, indoor 23 hours, no friends but recurrent offenders may like prison
rehab: programmes offered byt overcrowding can cause long wait lists
protection: removed from society, but are around other criminal which endangers community upon release
denunciation: yes but community may think sentence isnt long enough
deterrence: yes but people should have morals
specific: yes but may have mental illness making them not see the wrongs

Question 64

4 factors to consider when sentencing

Answer 64

• mitigating factors: factor that reduce culpability of offender which lessers their sentence
• aggravating factors: factor that increases culpability of offender which heightens their sentence
• guilty pleas: mitigating factor which gives discount on sentence depending on how early it was plead
• victim impact statement

Question 65

reforms and recommendations of cost and time
2 reforms
2 recommendations

Answer 65

reforms
- change in indictable offence sentence indications that indications include both sanction and SENTENCE (2022)
good bc it will save cost and time as offender can make an early plea of guilt
bad bc its given before facts so judge may not know the real severity of the crime and can add stress to victims

• technology, ability to do online pre trial procedures like commitals and plea forms which was brought in during covid
  good bc saves courts time and cost as no need to use physical court
  bad bc offenders need to have access to technology

recommendations
- abolish committal proceedings
good bc commitals result in delays, less stress to victims, will save time and money of courts and accused
bad bc weaker cases may go to trial and delay other trials and accused will be unable to properly plan and prepare their case
- abolish juries (or just for high profile cases bc of biases)
was done during covid
good bc there will be no bias or evidence not in court
bad bc doesnt bring community views and values, only view is on judge

Question 66

reforms and recommendations of culture

Answer 66

reforms
expansion of koori court into wodonga and wangaratta in 2022 magistrates court
good bc theres better access to indigenous people as they are with people that can understand their situation and deliver justice in a culturally sensitive way
bad bc it may not be in their area and they have to be pleading guilty

recommendations
further expansion if koori courts
good bc it will be in more areas
bad bc they still have to be pleading guilty
provide more legal aid accessible to indigenous people
good bc it can be online and free which saves them money
bad bc they need access to internet

Question 67

How does cost affect the criminal justice system

Answer 67

can affect fairness of trial
- pay for legal rep
- can lead to unfair processes
- may not be treated equal if unable to pay
- less access to information

Question 68

How does time and delays affect the criminal justice system

Answer 68

There should be no delays
- can result in emotional strain
- can delay other trials

Question 69

How does culture affect the criminal justice system

Answer 69

cultural differences can include lack of understanding of legal system
- indigenous people may find it difficult to answer questions because of shyness or cultural taboos
- may not be able to present their case because they don’t understand legal processes

Question 70

recidivism rates for imprisonement and ccos

Answer 70

44.2% prisoners return to prison
21% people return to ccos