UNIT3 AOS1; The Victorian Criminal Justice System B Flashcards
1
Q
Discuss
A
- Limitations
- Benefits
2
Q
Analyse
A
Is the impact
- Impact of court systems on each other or jury’s roles on each other
- Use words such as: ‘for example’, ‘this is significant’, ‘this leads to’, ‘this means’
- Cause and effect
3
Q
Plea Negotiations
A
- Discussions between the prosecutor and the accused about the charges against the accused
- Avoids a trial and they are the charges the accused will plead guilty to
- They can’t be held against you if they don’t go through and both the prosecution and accused much agree on it
4
Q
No Prejudices (Plea Negotiations)
A
- If negotiation is unsuccessful, offers made by either party during negotiations can’t be used against them
- Conducted in a disclosed manner
5
Q
Reasons for Plea Negotiations
A
- Accused pleads guilty to fewer charges
- Accused pleads guilty to a lesser charge, such as a charge for an alternative offence with a lower maximum penalty
6
Q
Purposes of Plea Negotiations
A
- To ensure certainty of the outcome of a criminal case
- To save on costs, time and resources
- To achieve prompt resolution to a criminal case without the stress, trauma and inconvenience of a criminal trial
7
Q
Appropriate Plea Negotiations
A
- Saving cost of full trial or hearing
- Quick determination of criminal case, delays can lead to unfairness, so justice can be achieved through prompt determination of guilt
- All involved are saved the trauma and distress of the trial process including accused
- Fairness is still achieved if the accused pleads guilty to charges that reflect the gravity and nature of the offence
8
Q
Not Appropriate Plea Negotiations
A
- Accused being presumed into accepting a deal even if evidence is not strong
- Accused being ‘let off’, getting a lenient sentence that does not reflect the crime
- Negotiations seen as prosector avoiding the need to prove the case beyond reasonable doubt
- Being held privately
- If they don’t succeed, either party may be advantaged or disadvantaged if matter processes in trial, such as the charges they were going to plead guilty for
9
Q
Reasons for Court Hierarchy
A
- Appeals
- Specialisation
10
Q
Appeals (Reasons for Court Hierarchy)
A
- Important because if a party is unsatisfied with the outcome of a case, they can appeal the final decision and have it reviewed by a higher court
- Need to prove they have valid grounds for an appeal, they aren’t automatic
- System of appeals grants fairness and allows for mistakes made in the original decision to be corrected
11
Q
What are the Grounds for Appeal?
A
Appealing on a question of law
- Laws have not been followed, like court was allowed to hear in admissive evidence.
Appealing a conviction
- Facts of the case are disputed
Appealing the severity (or leniency) of a sanction imposed
- Prosecution appeals on leniency and offender appeals on severity; ‘manifestly excessive’
12
Q
Specialisation
A
Is the process of a court developing expertise in a particular area of law as a result of hearing similar matters regularly
- For example the supreme court trial division hears the most serious indictable offences and will develop its own specialisation in those areas of law
13
Q
- Magistartes Court
A
- Summary offences, indictable offences heard summarily, committal proceedings, warrants and bail applications
- No appeals since it’s the lowest court in the hierarchy
14
Q
- County Court
A
- Majority of serious indictable offences
- Appeals on matters of fact or sentence from the decision of a magistrate
15
Q
- Supreme Court (Trial Division)
A
- Most serious indictable offences such as murder
- An appeal on a point of law from a magistrates’ court
16
Q
- Supreme Court (Court of Appeal)
A
- No original jurisdiction
- Appeals from a single judge of the supreme court (trial division) or county court
17
Q
- High Court of Australia
A
- Discusses federal matters
- Appeals from the full court of state supreme courts - in Victoria appeals from Court of Appeal
18
Q
1st dot point:
Original jurisdiction
A
Is the power of a court to hear a case for the first time
19
Q
2nd dot point:
Appellate Jurisdiction
A
Is the ability of a court to hear a case in which a decision if being reviewed or challenged on a particular ground
20
Q
The Roles of the Judge or Magistrate
A
Act impartially
1. Manage the trial of hearing
2. Decide or oversee the outcome of the case
3. Hand down a sentence
21
Q
Judge:
A
- Acts as an umpire at trial and makes sure that court procedures are carried out in relation with the courts rules to ensure all parties are treated equally
- No connections with either parties, they must act impartially
22
Q
Act Impartially
A
They must not be biased
- Apprehended bias is where they have a relationship with one of the parties
23
Q
- Manage the Trial or Hearing (The Roles of the Judge or Magistrate)
A
- Ensures court procedures are followed
- They have the power to give directions and make orders such as: how evidence is to be given, what documents the jury should see or whether there will be separate trials if there is more than one accused
- Judges do not take sides, but can recall a witness for a matter to be clarified or call a new witness. Can also ask occasional questions
- Must decide if evidence is admissible (accepted)
24
Q
- Decide or Oversee the Outcome of the Case (The Roles of the Judge or Magistrate)
A
Magistarte:
- Based on facts, will decide if the accused is guilty beyond reasonable doubt
Judge:
- May address jury about the issues in the trial, the relevance of any admissions made or any other relevant matter to the jury
- Examples:
Telling jury, accused is not required to give evidence and shouldn’t be assumed guilty because they didn’t give evidence.
Judge must explain beyond reasonable doubt to jury and needs to be given before any evidence; can be repeated anytime during trial.
- Once trial has concluded but before verdict Judge must describe the criminal law that applies to the facts, summarise the evidence presented by both parties
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3. Hand Down a Sentence (The Roles of the Judge or Magistrate)
- If a jury finds an accused guilty, or the accused pleads guilty the parties will make submissions about sentencing
(Can hear from victims through victim impact statements)
- Following a hearing, the judge must hand down a sentence. Must followed the sentencing guidelines established in the 'Sentencing Act 1991 (vic)' and comply with legislation about the sentence that should be imposed
26
Strengths of the Roles of the Judge or Magistrate
- Judge and Magistrate are impartial umpires. Overseeing the trial process but do not interfere in a trial or help either party argue their case. This means no party is at a disadvantage or advantage because the judge is taking sides
- They manage the hearing process, ensuring rules of evidence and procedure are followed, and both parties have an opportunity to present their case
- They can assist self represented accused people and can adjust the trial process to accommodate more vulnerable people, such as the young, people with a disability or with a mental health condition
27
Limitations of the Roles of the Judge or Magistrate
- Since they are human there can be risks that they have actual or apprehended bias that impact their decision making, such as if they are fatigue
- Study shows a lack of diversity in Australian judges and magistrate. Where women were underrepresented in higher courts. This can impact the extent to which accused people feel comfortable in a court room and the extent to which people feel confident in the administration of justice
- They can not interfere in a case, including those involving self represented accused person, even though they are one of the most experienced in the room
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The Roles of the Jury
Be objective
1. Listen to and understand the evidence
2. Understand directions and summing up
3. Deliver a verdict
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Be Objective (The Roles of the Jury)
- Jury must be unbiased and have an opened mindset putting aside and prejudices
- Like the Judge must have no connection with any of the parties (prosecution or the accused)
- They must decide whether the accused person is guilty or not guilty based on the facts and not on their own biases
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1. Listen to and understand the evidence (The Roles of the Jury)
- Keeping tract of complex information
- Determine which evidence / witnesses are reliable
- They are not to undertake own investigations
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2. Understand Directions and Summing up (The Roles of the Jury)
- Listening to directions given by the judge, can ask for an explanation about any legal point they don't understand
For example in sexual offence cases the trial judge may give directions to the jury about the jury about the meaning of 'consent'
- Listen to legal representatives presentations summarising the prosecutions case and the accused person's defence
32
3. Deliver a Verdict (The Roles of the Jury)
- The jury make a decision based on the facts of a case
- Deliberations should be taken freely and without pressure but they are confidential
- In a criminal trial, this means the jury must decide whether the accused is guilty beyond reasonable doubt
- Must aim to reach an unanimous verdict (12/12)
- If unable to agree on verdict, the court may accept a majority verdict (11/12) unless the accused is charged with murder, treason or certain drug offences
33
Strengths of the Roles of the Jury
- Since jury members are randomly picked it shows a cross-section between society, more likely to show their values
- Make decisions based on facts, not on biases or their own enquires
- Allows members of the jury to participate in the criminal justice process to ensure justice is 'seen to be done'
- Collective decision-making reduces any personal or subconscious biases, as they can be identified during the deliberation process
- They are made up of a diverse group of people, which can lead to the decision reflecting the views and values of our society
34
Limitations of the Roles of the Jury
- Jury members may have unconscious biases or prejudices. Since they don't give reasons for their decisions, there is no way of knowing whether bias played a role in their decision making
- Criminal trials are complex. It is not clear whether 12 laypersons on a jury will be able to understand the legal principles involved and the evidence that is given.
- Trials by jury may result in further delays as rules, evidence and process need to be explained to the jury and a jury may require some time to deliberate
- Number of people cannot participate in a jury because they are ineligible, excused or disqualified. Therefore it is possible that a large section of the community is not represented
35
The Roles of the Parties
1. Prosecution
2. Accused
36
The Prosecutions Roles:
1. Disclose information to the accused
2. Participate in the trial or hearing
3. Make submissions about sentencing
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1. Disclose the Information to the Accused (Roles of Prosecutions)
Means to reveal secret information
- Reveal all relevant matters to the accused, such as the evidence that will be used against them
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2. Participate in the Trial or Hearing (Roles of Prosecutions)
Give and opening address
- Must give statements to the jury or magistrate on the prosecutions case before evidence is given in trial
- Prosecution can only speak about evidence that has seen by accused
Present the evidence that supports the case
- Called examination-in-chief, includes calling and examining witnesses (Law witnesses, casual civilian, and expert witnesses, experts on topic)
- Cross-examining any witnesses called by the accused
Making a closing address
- Must limit themselves to the evidence and not emotions
39
3. Make Submissions About Sentencing (Roles of Prosecutions)
- If accused found guilty, the prosecution make submissions about the appropriate sanction to be imposed
- Their duty is to assist the court in determining the sentence by informing the court about laws that apply, and anything about the offence of the offender that is relevant to sentencing
40
The Accused Roles:
1. Enter a plea of guilty or not guilty
2. Participate in the trial or hearing
3. Make submissions about sentencing
41
2. Participate in the Trial or Hearing (Roles of Accused)
Give an opening address
- If accused is legally represented their lawyer must present to the jury a response to the prosecutions opening address (only if they have legal representation)
Present the evidence that supports the case
- Cross-examining any witnesses called by accused
- Accused decides which evidence to present which disproves prosecutions case. Although they don't have an obligation to give evidence or call any witnesses
- To decide which lawful defences to put to the court
Make a closing address
- Should be limited to the evidence
42
3. Make Submissions About Sentencing (Roles of Accused)
- Guilty person is entitled to put to the court reasons why the sanction should be more lenient
43
Strengths of the Roles of the Parties
- Since prosecution can't change witnesses without notice to the accused, it ensures there is no 'trial by ambush' in that another party is unable to challenge evidence of the other party because they have not been given prior notice
- Both parties have the opportunity to present their case, displaying fairness in the criminal justice system
- The accused has no obligation to present evidence or do or say anything in the trial, therefore upholding innocence
44
Limitations of the Roles of the Parties
- VLRC explores how early and adequate disclosure is an issue. It is noted that sometimes the police often wait to see what the defence requests rather than providing disclosure upfront
- Processes are complex and difficult to understand without a lawyer making it difficult for self represented accused people
- Right to silence may mean the truth does not come out. Such as the accused may not say or do anything. Often occurs when accused is the only person that knows what happens. Unjust for victims.
45
The Need for Legal Practitioners:
- Solicitor
- Barrister
46
Solictor
Is the party's primary legal adviser; it's their responsibility to understand the clients case, advise them of the relevant law, file the necessary paperwork with the court and brief barrister to appear at trial
47
Barrister
Is the legal representative who has the responsibility to speak on behalf of the client inside the courtroom
48
General Reasons Why Legal Practitioners are Needed:
- Accused require them to represent them (usually with an indictable offence)
- They are there to ensure that a person has adequate opportunity to test the evidence put against them
- Helps to ensure that no mistakes are made when deciding whether someone is guilty of a crime
49
Other Reasons for Legal Practitioners:
1. Ensure an accused understands legal proceedings
2. Prevent an accused from having to personally question witness
3. Provide objectivity
4. Help an accused to receive a fairer outcome
50
1. Ensure an Accused Understand Legal Proceedings
- Criminal proceedings may be difficult to comprehend for those with limited knowledge of the law
- By obtaining legal advice from legal practitioners an accused can be guided through each step of the process
51
2. Prevent an Accused from Having to Personally Question Witnesses
- Can be traumatic for victims to be questioned by the person who committed the offence against you
- Accused may struggle to question witnesses independently, as there are strict rules surrounding the questions that can be asked to a witness
52
3. Provide Objectivity
- An accused may struggle to view the evidence against them objectively
- Legal practitioners have a greater ability to look at the facts of the case from an impartial point of view, allowing them to identity weaker or stranger points in the prosecutions evidence against the accused
- This can allow a stranger defence case to be built without the interference of emotions
53
4. Help an accused to receive a fairer outcome
- Since criminal lawyers are experienced with similar criminal cases, they can build a more compelling defence against the prosecutions accusations
- A represented accused may be able to access fairer outcomes than a self-representing individual with limited experience in law
For example this can ensure:
- An innocent accused is not wrongfully found guilty
- An accused found guilty receives an adequate sanction that may be less sever as a lawyer can argue that certain mitigating factors apply in the case
- An accused is able to appeal their conviction or sentence if they feel they were wrongfully found guilty or inappropriately sentenced
54
Provision of Legal Representation
- Since not everyone can afford a lawyer and legal services as well as VLA and CLC cannot help everyone, therefore there is a gap of those that are not able to be represented
- The Criminal Procedures Act 2009 (VIC) gives the court power to postpone a trial for serious offences until legal representation from VLA has been provided
- The court must be satisfied that the accused would not be able to receive a fair trial without legal representation and the accused cannot afford to pay for their own
55
Strengths for Legal Practitioners
- Legal practitioners are experts who can help the accused person navigate the criminal justice system. Includes assisting and conducting opening and closing addresses where there are rules about why they can or cannot say
- They have objectivity in being able to make decision in the criminal case, such as whether to accept an agreement in a plea negotiation. Self-represented accused people do not have that objectivity
- Can help avoid delays that may arise with self-represented accused people (Trial process may slow down to allow accused people to understand what's happening)
56
Limitations for Legal Practitioners
- Not all legal practitioners are equal or have the same level of experience and skills. This may impact on the quality of the legal services
- Since not everyone can afford legal representation, some people are left to represent themselves. Often self-represented accused people do not have the necessary skills
- Might not be able to assist an accused such as those who cannot understand english or those suffering from trauma, therefore more support may be needed
57
Costs
Can be significant for an accused who cannot afford legal representation
- Also important for victims in need of legal advice and assistance
Because of how big the costs are some accused feel as though they need to self represent themselves.
Solicitors:
Junior solicitor charge around $300 p/hour
Senior solicitor charge $500-$800 p/hour
Barristers:
Senior counsel usually charge $8000-$10000 per day
Junior counsel usually charge $3000-6000 per day
58
Costs Link to Principles of Justice
1. Fairness:
Is compromised because good legal representation is out of reach for many accused, therefore unable to properly engage in the legal system
2. Equality:
Is compromised because some members of the community have better access to good services than others
3. Access:
Is compromised because inadequate legal advice and support means meaningful engagement in the system
59
Measures to Address Costs
1. Provision of free legal aid through bodies such as VLA and CLC's
- However a lot of people are not eligible increasing self represented parties
2. Using committal proceedings for indictable offences to 'filter out' weaker cases
- Often ineffective as the vast majority of cases are committed on trail, only 1.6% of cases are dismissed as a result of committal hearings
3. Using plea negotiations to resolve criminal cases
60
Time or Delays
'Justice delayed is justice denied'
- Parties should work with practical speed to ensure an accused is tried within a reasonable amount of time depending on the case
- Delays can disrupt evidence making is more unreliable
- Cases involve a range of tasks such as gathering evidence, locating and interviewing witnesses
- The need for committal proceedings
61
Times Link to Principles of Justice
1. Fairness
Is compromised because delays have a significant impact on the life, and physical and mental health of anyone involved.
Quality of evidence degrades over time.
2. Equality
Is compromised because delays will not impact every accused in the same way
3. Access
Is compromised because delays can encourage criminal defendants to plead guilty. Accused may exhaust all funds before the end of the case and lose their ability to adequately defend themselves
62
Measures to Address Time
1. Plea negotiations reduce delays by achieving an early guilty plea
- Case can be determined quickly saving time and resources
2. The investment in digital technology to allow for more remote hearings can help address delays
- Appear by video than in person, meaning they don't have to travel far distances
63
Cultural Differences
Is difficult to access the justice system for multiple different cultural groups
This includes people whom english isn't their first language and First Nations People
- Culturally based different include lack of knowledge of the legal system, not understanding english, cultural misunderstandings
IN VICTORIA: indigenous Australians make up 1% of the general population, but 8% of the prison population
64
Cultural Differences Link to Principles of Justice
1. Fairness:
Is compromised when the structure of the justice system is inappropriate for entire sections of the community and is inappropriate for their needs
2. Equality:
When the structure of the criminal justice system gives some people a better experience than others. Includes rules applied in it and the values on which it is based
3. Access:
When the rules, procedures, values and system prevent some people from understanding or using the system. Or prevent some people from feeling respected, values and comfortable
65
Measures to Address Cultural Differences
Koori Court:
Is a division of the Magistrates and County Court.
- Is a sentencing court (doesn't determine guilt)
For First Nation offenders that aim to respect them and encourage participation by the accused and community
Sentencing process is informal and conducted in a culturally appropriate way
66
Purposes of Sanctions:
1. Rehabilitation
2. Punishment
3. Deterrence
4. Denunciation
5. Protection
67
Rehabilitation
Improvement
Sanctions that could help treat the offender and address the underlying reasons for the offence
- Aims to assist offenders to change attitudes and behaviours with the goal of preventing them from reoffending
68
Punishment
Hardship
Must be punished so victims of the crime and community feel justice has been done
Punishment needs to fit the crime, community feels it has achieve retribution
Avoids the need for victims to take matters into their own hands
69
Deterrence
Discouraged
Choosing not to commit crimes because you want to avoid a negative consequence that is attached to criminal behaviour
- General to public
- Specific to offender
70
Denunciation
Disappointment
- Speaking to all, a sanction may be given to show the community that the court disapproves of the offenders crimes
71
Protection
Safety
Removing offender from the community to protect society because the offender is physically prevented from reoffending
72
Fines
Explanation:
Are the amount of money ordered to be paid by the offender to the state of Victoria.
Penalty units; $197 per unit
Purpose:
TO PUNISH offenders by requiring them to pay money to the state. Needs to be high enough to act as a punishment
- Specific: discourages the offender from reoffending
- General: other members of society will have to pay a fine if they are caught committing a similar act
- Denunciation: court may give a very high fine to show strong disapproval
Limitation:
- Wealth of the offender, doesn't work as a general or specific deterrent
- Ability to denounce the crime
73
Imprisonment
Explanation:
They will be removed from society and they will lose their freedom and liberty
Purpose:
TO PROTECT society from the offender
- Rehabilitation: programs offered to prisoners
- Denunciation: long sentences by showing disapproval of the acts committed
- General deterrence: people would be deterred from committing a crime because of going to prison. Worst night is the first, because you don't know what prison is like.
Limitation:
- Specific deterrence: doesn't deter the offender from committing further crimes in future. Statistics show 73% of people released from prison will go to prison again.
- Rehabilitation: greatest risk of reoffending comes after prison, tough spot to get a job and may be surrounded by negative influences
74
Community Correction Orders (CCOs)
Explanation:
Is a supervised sentence served in the community; includes special conditions; gives offenders the opportunity to stop their criminal behaviour
Purpose:
TO PUNISH the offender, like having to obtain permission before leaving Victoria
- Rehabilitation: by alcohol exclusion, anger management, and treatment of the offender by treating the underlying cause of the offending
- Specific Deterrent: having to do unpaid community work or complying with burdensome conditions may discourage the offender from committing the same crime again
Limitation:
- Protection: Still allows the offender to live in society where they are still able to harm people
- Denunciation: Public doesn't see a visible change in the offenders circumstances they may not believe the offenders behaviour has been condemned enough
75
Conditions of the CCOs
- Curfew
- Unpaid community work
- Alcohol exclusion
- Treatment
- Non-association (bad influences)
76
Factors Considered in Sentencing
1. Aggravating factors
2. Mitigating factors
3. Guilty pleas
4. Victims impact statements
77
1. Aggravating Factors
- Are circumstances about the offender of offence that increase the offenders responsibility
Increase seriousness, therefore higher sentence may be imposed
Examples:
- Use of violence or a weapon
- Nature and gravity of the offence
- Being motivated by hatred or prejudices against people with common characteristics
78
2. Mitigating Factors
- Are relevant to the offender, victim or the crime itself
Reduce seriousness, therefore lower sentence
Examples:
- Offender showed remorse
- Was provoked by victim
- Offender pleaded guilty early
- Have a disability or were younger that made them not fully aware of the consequences
79
3. Guilty Pleas
At an early stage can result in a less-severe sentence, rewarding the offender for saving time and resources
Late pleas not treated the same; resources lost
80
4. Victims Impact Statements
Must take into account the impact of the offence on any victim. Will learn about personal circumstances.
Allows victims to have their say in the sentencing process
- Can act LIKE an aggravating factor
