Unit 3.1 - Criminal Justice System

Question 1

summary offences

Answer 1

minor offences that are dealt with by a magistrates court
- no jury
- can be heard in the absence of the accused
- summary offences act 1966
- can attract any sanction, although have a maximum imprisonment term of 2 years for an individual offence
- can attract lesser penalties such as a discharge

Question 2

indictable offences

Answer 2

more serious offences that must be heard in front of a jury
- jury of 12
- county or supreme court and can’t be heard in the absence of the accused
- committal proceedings will occur in the MC beforehand
- crimes act 1958
- increased sanctions, including life imprisonment
- the accused may choose to have certain offences heard summarily (robbery offences under $100000)

Question 3

burden of proof

Answer 3

there are 2 parties involved in a criminal dispute, the prosecution (the state) and the accused. the party who is responsible for proving the case possesses the burden of proof
- always relies on the party who initiates the case
- accused does not necessarily need to present evidence to defend themselves (protects the presumption of innocence)

Question 4

standard of proof

Answer 4

beyond reasonable doubt
the level to which the prosecution has to prove their case is known as the standard of proof
- protects against wrongful convictions - evidence must be overwhelming

Question 5

presumption of innocence

Answer 5

it is an essential human right that an accused person is treated as not guilty until proven otherwise in a court of law
- upheld through the usual assumption of bail
- both the burden of proof and the standard of proof supports this
- can be reversed in some circumstances

Question 6

rights of an accused -
to be tried without reasonable delay

Answer 6

delays can cause unnecessary hardship to an accused person and also to witnesses and juries.
- time must be allowed for full investigation to be completed, and the defence to be prepared by the accused.
- however, they must not be so delayed that they cause uncertainty and stress for the accused, as well as adding costs
- no exact measure, however some limits apply.
- summary offences must be brought up within 12 months, or 6 months if its a child.
MC = 6 - 12 months
CC = 14 - 16 months
SC = 18 months
- may ultimately impact fairness or witnesses may have difficulty in remembering the details

Question 7

rights of an accused: the right to silence

Answer 7

the accused does not need to actively defend themselves as the burden of proof rests with the prosecution
- in a criminal trial or hearing, you can’t be made to testify against yourself or admit guilt
- you have the ability to remain silent in your own defences and it cannot be used as a factor against you
- no adverse interference can be drawn from the accused not giving evidence or calling witnesses

Question 8

rights of an accused: to trial by jury

Answer 8

justice is a community responsibility and those charged with serious offences should be tried by their peers
- ensures evidence and arguments are presented in a way that is understandable to everyday people
- randomly selected to provide a cross section of the community to ensure impartiality
- shared decision making

Question 9

rights of a victim: to give evidence using alternative arrangements

Answer 9

victims are often the most valuable witnesses in criminal proceedings, therefore, they must feel comfortable when giving evidence. they may also be questioned by the accused.

Question 10

rights of a victim: to be informed about the proceedings

Answer 10

it is legally mandated that the police and prosecution must update the victim of a crime regularly. this ensures that victims have access to closure.

Question 11

rights of a victim: to be informed of the likely release date of the offender

Answer 11

by being placed on the victims registers, a victim is able to be alerted when the offender is to be released. this allows them to make adequate preparations to ensure they can avoid traumatic situations.

Question 12

principles of justice: fairness

Answer 12

justice system: important and just treatment before the law, requiring fair process and hearings that are unbiased
- this includes impartial and open processes
- having legal representation
- being presumed innocent
- appeals
- being able to change your plea
- impartiality
- no bias or prejudice
- requires a decision to be based on facts presented in court
- participation into the system

Question 13

principles of justice: equality

Answer 13

person - equal treatment before the law regardless of characteristics and beliefs such as discrimination towards someone’s age, gender, disability, nationality, religion or sexuality
- if the parties were on equal footing
- use of a random jury, impartial judges in appeal hearings
- resources to match the legal representations
- disparity /discrimination/ disadvantage

Question 14

principles of justice: access (to what)

Answer 14

institution and information - the ability to approach and make use of the legal system, people should be able to understand their rights and pursue their case.
- legal representation (VLA) to allow you to know your rights and understand court process
- right to appeal
- delays (limit access)
- formalities of courts
- jury trial being limited
- simplifying legal jargon + processes

Question 15

victorian legal aid (VLA): role

Answer 15

the role of the VLA is to provide free legal information to the community and legal advice and representation for people who cannot afford to pay for a lawyer.

Question 16

VLA: type of legal aid

Answer 16

• free legal information
• legal advice (about the law, how it applies and what happens in court)
• legal representation

Question 17

VLA: duty lawyers

Answer 17

• based in the MC (+ children’s court)
• income test: centerlink or concession

Question 18

VLA: grant of legal assistance (to engage with legal representation)

Answer 18

• means test - very poor (assets and income)
• income - less than $360/week, in some cases up to $540 (contribution required)
• means test (benefits to the accused and the public, likely harm if the grant is refused, likelihood of success, whether a grant is in the interests of justice)

order by the court:
- the court may adjourn a trial until legal representation from the VLA has been provided.

Question 19

VLA: strengths

Answer 19

Fairness
- understand the criminal justice system
- obtain legal advice and legal representation
- fair hearing - assistance with presenting their case
Access:
- understand court procedures
- free legal information
- grants for legal assistance
- duty lawyers
- legal advice
Equality
- ensures an accused is not disadvantaged due to their financial situations
- VLA eligibility criteria applies regardless of personal characteristics such as age, race and religion
- helps people who are financially disadvantaged/disparity

Question 20

VLA: weaknesses

Answer 20

Fairness
- limits on access to VLA due to:
- strict eligibility criteria
- limited resources/budget
- the ‘missing middle’ required to self represent
- hinders the ability of an accused to present their case
- lack of representation may result in an unfair trial
Access:
- ‘missing middle’
- free information published online
- is general in nature
- is not available to those without internet - low income, homeless, elderly
Equality:
- ‘missing middle’

Question 21

community legal centres (CLCs): role

Answer 21

CLCs are ‘not for profit’ independent organisations that provide free legal services (including advice, information and representation) to people who are unable to access other legal services
- economic, social or cultural disadvantage
- funding - government and non government sources
- generalist v specialist
- criteria for assistant is different for each CLC

Question 22

CLC: type of assistance

Answer 22

• provide basic legal information - EG Fitzroy legal service law handbook online
• free legal advice: initial legal advice and minor assistance
• duty lawyer assistances
  - legal representation for summary offences in MC
  - urgent matters that will be completed in 1 day
• legal representation - casework services ( rate: minor offences)
• assist with VLA applications

Question 23

CLC: strengths

Answer 23

Fairness:
- understand the criminal justice system
- assists a self-represented accused present their case thus assisting the achievement of a fair hearing
Access:
- understand their legal rights
- understand court procedures
- free legal information
- CLCs located all across Melbourne
- understand their legal case
- assists an accused self defend
- legal advice
Equality:
- specialists CLCs to assist those with particular personal characteristics
- EG. women, aged, disabled, refugees, aboriginal people

Question 24

CLC: weaknesses

Answer 24

Fairness:
- CLCs legal advice and casework often limited to relatively minor criminal matters. so cannot assist those defending indictable offences
- Most CLCs don’t provide legal representations
- thus hindering the ability of an accused to effectively defend themselves - ie. present their case and rebut the prosecutions case.
Access:
- very few CLCs in rural victoria (so people who live far and can’t afford may lack the ability to get to central victoria)
Equality:
- without access to legal representation those from law - socio economic backgrounds, may not achieve equal treatment before the law

Question 25

plea negotiations: definition

Answer 25

• discussions between the prosecution and the accused
• with a view to reaching agreement about the charges that the accused will plead guilty to
• involves the prosecution offering the accused incentives to plead guilty - EG:
  - the withdrawal of some other charges
  - a reduction in the severity of the charge - EG an accused charge with murder pleads guilty to manslaughter
• without prejudice - offers made cannot be used at the trial if negotiations fail

Question 26

plea negotiations: purposes

Answer 26

• timely determination (no trial)
• reduce cost, time, stress, trauma
• secure a conviction
• fairness - conviction reflects the severity of the criminal conduct

Question 27

plea negotiations: appropriateness

Answer 27

Stakeholders
Accused - is the accused willing to plead guilty?
- does the accused have legal representation?
Victims - is the victim reluctant to give evidence (trauma, stress)?
- will they be a reliable and credible witness
- do the victims want their day in court? transparency/justice
Other witnesses - reluctant to give evidence?
- reliable/credible?
Prosecution - the strength of the prosecutions case
Courts - time, money, limited resources
Society - wants to see that justice is served -
- is the conviction proportionate to the offending?

Question 28

plea negotiations: strengths

Answer 28

• reduced cost - no trial
• reduced delays - frees up court resources
• reduces trauma - victims and accused families
• procedural fairness
• fairness: where the guilty plea reflects the gravity and nature of the offence
• certainty of the outcome
• access for the accused

Question 29

plea negotiations: weaknesses

Answer 29

• lenient sentence may not reflect the victims’ or community expectations
• avoids the standard of proof (fairness)
• negotiations are conducted in private - hinders fairness as trials are public

Question 30

the reasons for a victorian court hierarchy in determining criminal cases: victorian court jurisdiction (original and appellate)

Answer 30

magistrates court jurisdictions
- original - summary offences, indictable offences heard summarily, committal proceedings
- appellate - none
county court jurisdiction
- original - all indictable offences except those reserved for SC (murder, rape, armed robbery)
- appellate - from MC and Children’s court, on convictions and sentences
sc. trial jurisdiction
- original - most serious indictable offences (murder, treason)
- appellate - from MC on points of law
sc. appeal
- original - none
- appellate - from C.C and SC (trial) on points of law, conviction or sentence

Question 31

specialisation

Answer 31

expertise
- allows courts and judges to develop area of expertise
- competent court - element of a ‘fair hearing’
- eg. MC: summary offences
CC: most indictable offences
SC: murder

Question 32

appeals

Answer 32

• allows court cases to be reviewed by higher courts which may reverse the lower courts decisions
• ensures a fair hearing by allowing for the correction of errors
• a party who is dissatisfied with a decision and has grounds for appeals
• 3 grounds for appeal
  - questions of law
  - on conviction (ie. Q of fact - guilty or not guilty)
  - on the severity or leniency of the sanction/sentence

Question 33

administrative convenience

Answer 33

• this is about allocation of resources (time, money, expertise)

Question 34

precedents

Answer 34

• set in the supreme court and above (court of appeal)
• set by the higher courts are binding on lower courts in the same hierarchy

Question 35

the reasons for a victorian court hierarchy in determining criminal cases: strengths

Answer 35

• the court allows incorrect decisions of a lower court to be reviewed and corrected by a higher court with more experience, which provides both parties with a fair process
• the court hierarchy allows for courts to be allocated a specific jurisdiction based on their ranking. this allows the court staff to develop specialisation in dealing with particular disputes so they are better equipped to a fair hearing outcome and fair hearing.

Question 36

the reasons for a victorian court hierarchy in determining criminal cases: weaknesses

Answer 36

• higher ranked courts attract higher fees for hearing appeals and retaining legal representations, which the accused may not be able to afford. this would limit their ability to have mistakes corrected and potentially result in an unfair outcome/process
• due to the costs associated with appealing a decision in higher ranked courts, an accused may not have an equal opportunity to present and pursue their case, due to a weaker financial position when compared to the office of public prosecutions

Question 37

judge: role

Answer 37

• manage the trial - make directions
  - eg. how evidence is given
  - ask questions (to clarify their response)
  - recall a witness
• enforce rules of evidence (eg. reliable and relevant)
• enforce the rules of procedures (eg. the examination of witnesses)
• must be impartial
• attend to jury matters
• give directions to jury and sum up the case
• hand down a sentence
• order that the VLA provide legal representation

Question 38

judge: strengths

Answer 38

fairness:
- ensures procedural fairness - enforcing rules of evidence and procedure
- competent (expertise)
equality:
- equal treatment
- independent and impartial
access:
- the judges expertise in ensuring natural justice

Question 39

judges: weaknesses

Answer 39

fairness, equality and access
- the judges expertise is not fully utilised:
- witnesses
- evidence
- questioning
- unable to assist a self represented accused
- judge doesn’t determine the verdict at trials (CC & SC)

Question 40

magistrates: role

Answer 40

hearing bail applicants and granting bail
- the release of an accused person from custody on condition that they will attend a court hearing to answer the charges

Question 41

committal proceedings: purposes

Answer 41

to determine:
- whether to commit the accused to trial
- whether there is evidence of sufficient weigh to support a conviction at trial before a jury
- whether it is appropriate to be determined summarily
- how the accused wishes to plead
- to ensure a fair trial, if the case proceeds to trial

a court hearing that is held as part of the committal proceeding in the magistrates’ court. at a committal hearing, the magistrate will decide whether there is sufficient evidence to support a conviction for the offence charged committal proceeding the pre trial hearings and processes held in the magistrates court for indictable offences.

Question 42

committal proceedings: definition

Answer 42

• pretrial procedure, held in the mc, indictable offences.
  stages include: a filing hearing, a hand up brief, a committal mention and a committal hearing

Question 43

jury: role

Answer 43

deliver a verdict - guilty or not guilty
- make a decision - decide questions of fact
- be objective - unbiased, base their decision only on evidence
- listen to and remember evidence
- understand directions and summing up
- not conduct their own investigations or research

Question 44

jury: strengths

Answer 44

fairness
- ensures procedural fairness
- trial by peers - cross section of the community
- independent - randomly selected
equality
- equal treatment - all accused are entitled to a jury regardless of personal characteristic
- independent and impartial (unbiased)
- decision is based on the evidence - juries cannot conduct their own investigations
access
- trial is conducted in english (plain), non legal jargon, so juries can understand the trial - engage in information
- assists the accused understand the legal process

Question 45

jury: weakness

Answer 45

fairness, equality
- not necessarily a cross-section of the community - disqualified, excused or ineligible
access
- deliberations are secret (no access to the juries reason)

Question 46

parties: prosecution and accused - role

Answer 46

• present the party’s case (witnesses, evidence, factual and legal arguments)
• examine witnesses
• give an opening address
• assist the judge in jury matters
• make submissions regarding sentencing

prosecution
- present all credible and relevant evidence, including evidence that is not beneficial to their case
accused
- no obligation to give evidence, answer questions or call witnesses

Question 47

parties - strengths

Answer 47

fairness
- party control
- ‘the truth should emerge’
- accused has the opportunity to know the case against them, present their case/defence, rebut the prosecutions case
equality
- equal treatment - DDP and accused have equal opportunity to challenge potential jurors
- equal opportunity to present their case
access
- courts provide some guidance to a self-represented accused

Question 48

parties - weaknesses

Answer 48

fairness, equality and access
- party control
- self represented accused will have difficulty understanding their rights and how best to present their case and
receive minimal assistance from court
- delays can occur - leading to deterioration of evidence

Question 49

the need for legal practitioners in a criminal case - role

Answer 49

• comply with their duty to court - overarching obligations
  - over and above their duty to the client
  - must not mislead the court about evidence or the applicable law
  - cooperate with the other party and the court
  - comply with court directions
• present the party’s case: witnesses, evidence, facts and legal arguments
• examination of witnesses
• opening and closing address
• make submissions regarding sentence

Question 50

legal practitioners - strengths

Answer 50

fairness
- right to have an expert present their case
- accused has the opportunity to:
- know the case against them
- present their case/defence
- rebut the prosecutions case
- obligations to court
equality
- equal opportunity to present their case
access
- courts provide some guidance to a self-represented accused

Question 51

legal practitioners - weaknesses

Answer 51

unequal representation - accused unable to afford legal representation or access other bodies such as VLA
fairness
- unfair process = unfair outcome
equality
- opportunity to present their case is not equal
access
- self represented accused will have difficulty understanding their rights and how best to present their case

Question 52

costs

Answer 52

costs of legal representation
- the costs associated with the criminal justice system include costs of legal representation which can be significant for
people who are accused or victims of crime
- while everyone has the right to legal representation, no everyone can afford it. it can result it lack of necessary skills,
experience and objectively to navigate the system without a lawyer
measures to address costs
- one of the key measures out in place to address the issue of costs is the provision of free legal aid through bodies such as
VLA and CLA.
- they help assist self represented accused and provides them with free legal information and in some cases, free legal
representation
- some measures are in place to try to reduce the costs, such as committal proceedings and plea negotiations. committal
proceedings may be a limited measure to address costs it most accused people are committed to stand trial. they do
however, provide an opportunity for plea negotiations and for the accused to plead guilty.

Question 53

time

Answer 53

court delays
- most criminal cases involve a range of tasks such as gathering evidence, locating and interviewing witnesses, determining
what happened and determining what charges should be laid against an accused. how long these tasks take to complete
is different from case to case.
measures to address delays
- the use of plea negotiations can reduce delays by achieving an early guilty plea in a case. this means the case can be
determined most quickly and saves the time/as well as stress, costs and inconvenience.
- temporary judges - alone trials also sought to address the issues of delay
- improved technology and increasing use of virtual hearings may also alleviate the pressure

Question 54

cultural differences

Answer 54

difficulties faced by first nations people
- first nations peoples have a complex system of laws and customs handed down from generation to generation. FN
people from traditional areas who are not familiar with contemporary australian society are likely to experience
difficulties in giving and understanding evidence in courts
- difficulties can include language barriers. there are subtle differences in the way language is used by some FN people
who are no use to this method
- direct questioning - the question and answer method of obtaining evidence which is often the way criminal evidence is
obtained, can be inappropriate for some FN people who are not use to this method.
- body language - direct eye contact can be viewed as disrespectful to some FN people, may may try to limit or avoid it by
looking down or to the side. this may make them look uninterest
- cultural taboos - in some cultures, saying the name of a deceased people may be considered taboo
- lack of understanding of court procedures - some may not understand why they have to tell the same story over and
over.

Question 55

cost of trial examples

Answer 55

britney higgins case - $50000 to $70000 per day for mediation
cardinal pell case - $1.5 million
cost of trial in county court is apx $14000 per day

Question 56

effects of costs factors on the POJs

Answer 56

fairness
- an accused who is required to self represent due to costs factors may not receive a fair hearing due to their:
- inability to effectively present their defence or rebut the prosecutions case
- lack of knowledge of the law, court processes and procedures
- lack of familiarity with the language used in the court
- the courts have recognised that in some cases, such as serious offences, legal representation may be necessary for an
accused to have a fair trial
equality
- an accused who is required to self represent due to cost - factors may not receive a fair hearing due to their:
- lack of knowledge of the law, court processes and procedures
- lack of familiarity with the language used in the court
- a self represented accused will typically come up against experienced prosecutors who have the sources of the state
government behind them. this can hinder the ability of the accused to prepare and present their case at the same level of
quality as the prosecutors.
access
- an accused who is required o self represent due to cost - factors may not receive a fair hearing due to their:
- lack of knowledge of the law (eg. relevant statutes and precedents)
- lack of understanding of their rights (right to silence)
- lack of understanding of criminal processes and procedures (eg the rules of evidence and the procedures for the
examination of witnesses

Question 57

the purposes of sanctions - punishment

Answer 57

the offender should be punished to an extent and in such a manner that is just in all the circumstances. this enables the community to feel that there has been some retribution.

Question 58

the purposes of sanctions - rehabilitation

Answer 58

the treatment of the offender to address the underlying reasons for their offending. the treatment programs aim to enable the offender to become a productive member of society (drugs and alcohol treatment programs)

Question 59

the purposes of sanctions - deterrence

Answer 59

general: to discourage the community from committing similar crimes
specific: to discourage the offender from committing the same or similar crimes

Question 60

the purposes of sanctions - denunciation

Answer 60

to show the courts (and society’s) disapproval of the offenders conduct

Question 61

the purposes of sanctions - protection

Answer 61

to ensure the safety of the community

Question 62

fines

Answer 62

• monetary penalties that is paid by the offender to the state of victoria (not the victim)
• it is expressed in penalty units
• court considers
  - the financial circumstances of the offender
  - the nature of the burden the fine will impose

Question 63

community correction orders - CCOs

Answer 63

• supervised sentence served in the community
• sanctions that allows an offender to stay in the community whilst serving the sanction
• requires the offender to comply with certain basic conditions which are attached to the order. this offender is required to
  comply with at least one other ‘optional’ condition: such as unpaid community work
• conditions are chosen based on the offenders circumstances and will often aim to address the underlying caused of their
  criminal behaviour
• seen as flexible sentencing option given as a sanction

Question 64

imprisonment

Answer 64

• involves the removal of the offender out of society and into a facility known as jail or prison
• when a judge delivers a sentence, they will outline the period of imprisonment served, the accused may be reviewed and
  assessed for their eligibility for parole which is when they are released from prison with certain conditions attached
• prison sentences may be served concurrently, which is where multiple sentences are served at the time or cumulatively, in
  which an offender serves a total term of imprisonment where two or more sentences are added up together

Question 65

aggravating factors

Answer 65

are factors that increase the seriousness of the offence of the offender’s culpability. these may result in an increase in the severity of the sanction
- use of violence, explosive or weapons
- the nature and gravity of the offence (brutality, planned, unprovoked)
- victim’s vulnerability
- offence in front of kids
- breach of trust
- previous offending
- hatred motivation

Question 66

mitigating factors

Answer 66

are factors that decrease the seriousness of the offence of the offender’s culpability. these may result in a decrease in the severity of the sanction
- nature and gravity of the offence
- early guilty plea
- lack of prior offending
- remorse
- offender’s duress (forced)
- co-operation with police
- prospects of rehabilitation
- personal strain of the offender
- lack of harm caused
- young or disabled

Question 67

guilty pleas

Answer 67

whether the accused pleaded guilty, and if so, how far into the case
- they create an incentive for the accused, as they know that they will be taken into account during sentencing
- overall benefits the community (time, cost, stress)

Question 68

victim impact statement

Answer 68

the personal circumstances of the victims: any loss, injury or damage suffered as a result of the offence
- medical and psychological reports
- request o be read aloud in court
- the court may be given directions as to which parts of the victim impact statement are admissible