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Unit 3/4 - Legal Studies > Victorian Criminal Justice System > Flashcards

Victorian Criminal Justice System Flashcards

1
Q

Parliament

A

A formal assembly of representatives of the people that is elected by the people and gathers to make laws.

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2
Q

Government

A

The ruling authority with power to govern, formed by the political party that holds majority in the lower house.

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3
Q

Opposition

A

The political party that holds the second-largest number of seats in the lower house.

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4
Q

Crossbenchers

A

members of parliament who are not members of either the government or the opposition.

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5
Q

Statute Law

A

A law made by parliament

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6
Q

Royal Assent

A

The formal signing and approval of a bill by the governor-general.

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7
Q

Jurisdiction

A

The lawful authority of a court, tribunal, or other dispute resolution body to decide legal cases.

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8
Q

Common Law

A

Law made by Judges through decisions made in cases.

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9
Q

Precedent

A

A principle established in a legal case that should be followed by courts in later cases.

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10
Q

Laws

A

Legal rules made by a legal authority that are enforceable by the police and other agencies.

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11
Q

Constitution

A

A set of rules and principles that guide the way Australia is governed.

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12
Q

Summary Offences

A

Summary offences are minor crimes that are outlined in the Summary Offences Act 1966 (Vic) and are heard in the Magistrates Court of Victoria.

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13
Q

Indictable Offences

A

Indictable offences are serious crimes that are outlined in the Crimes Act 1958 (Vic) and are heard in the County or Supreme Court.

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14
Q

Indictable Offences Heard Summarily

A

Indictable offences heard and determined summarily are serious crimes that can be heard in the Magistrates Court as if they were summary offences.

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15
Q

Committal Hearings

A

The pre-trial procedure that occurs before indictable offences are heard at trial in the County or Supreme Court. The prosecution has the responsibility of proving that there is sufficient evidence to support a conviction at trial.

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16
Q

Burden of Proof

A

The burden of proof is a requirement within the legal system that places responsibility on one party to prove the facts of a case. For criminal law, this responsibility rests upon the prosecution.

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17
Q

Reversed Burden of Proof

A

The burden of proof is reversed in criminal cases when the accused is using the defence of mental impairment or they have been accused of the possession of an illegal substance on their property.

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18
Q

Standard of Proof

A

The standard of proof is the level certainty required to prove a case. In criminal law, the standard of proof is beyond a reasonable doubt.

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19
Q

Presumption of Innocence

A

A person who has been accused of a crime must be presumed innocent until proven otherwise.

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20
Q

The Accused Right to Trial Without Unreasonable Delay

A

A person charged with a criminal offence is entitled to a guarantee that they will be tried without unreasonable delay. This right is without discrimination which means every accused person is entitled to this provision. The right is outlined in sections 21 and 25 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

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21
Q

The Accused Right to Silence

A

The right to silence refers to an entitlement whereby the accused does not have to say or do anything when being charged with an offence and no inferences can be made that this means they are guilty. The right is outlined in the Evidence Act 2008 (Vic).

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22
Q

The Accused Right to a Jury

A

The right to trial by jury refers to the entitlement that should an accused plead not guilty to an indictable offence, their guilt must be determined by a group of twelve jurors rather than a judge alone.

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23
Q

The Right to be Treated as a Vulnerable Witness

A

The right to be treated as a vulnerable witness refers to a situation whereby a victim is also a witness to the crime and may be required to testify in court. When this occurs, victims are entitled to certain adjustments to accommodate and lessen further trauma or stress. This is only given to victims of a sexual offence, a family violence offence, an offence of sexual exposure or an offence of obscene indecent language or threatening behavior. This is outlined in the Criminal Procedure Act 2009 (Vic).

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24
Q

The Right to be Informed About Proceedings

A

Victims may require additional support due to being adversely affected by the crime. So victims are entitled to be informed about support services/compensation, and details of how the legal system will carry out justice. They also have the right to be informed during intervals regarding details of the investigation.

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25
Q

The Right to be Informed About the Likely Release Date of the Offender

A

A person who is a victim of a criminal active violence may apply to be included in the victims register, whereby they can receive certain information about an offender who has been imprisoned including notification of the release of the prisoner on parole at least 14 days before the release. They will be given this right if they are victims of rape or other sexual offences, aggravated burglary, kidnapping, stalking, child stealing, offences involving a social injury, culpable driving, dangerous driving, or failing to stop a motor vehicle accident.

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26
Q

Fairness

A

Fairness is the principle that all people can participate in the justice system and its processes should be impartial and open. Fairness is designed to ensure that innocent people are not found guilty of a crime they did not commit and public confidence is maintained.

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27
Q

Fairness- impartial processes

A

Impartial process ensures courts and personnel including judges magistrates and jury members remain independent and impartial. This means they should not show bias towards either party and the case must be decided on facts and law.

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28
Q

Fairness- open processes

A

Open process is the ability for the community to be informed and scrutinize the legal system through process is being transparent. This allows legal personnel to be held accountable and answerable for their actions.

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29
Q

Fairness- participation

A

Participation refers to the ability for various individuals including the accused, victims and witnesses to engage with the criminal justice system.

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30
Q

Equality

A

Equality is the ability for all people who engage with the justice system and its processes should be treated in the same way however if the same treatment creates disparity or disadvantage adequate measures should be implemented to allow everyone to engage with the justice system without disparity or disadvantage.

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31
Q

Equality- Same treatment

A

Same treatment refers to formal equality whereby all the individuals are treated the same and given the same levels of support regardless of their personal differences or characteristics such as race religion gender identity or age.

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32
Q

Equality- different treatment

A

Different treatment refers to substantive equality whereby if the legal system did treat people in the same way but in doing so causes disadvantage or disparity then measures/adjustments should be put in place to allow people to participate in the justice system.

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33
Q

Access

A

Access is the ability for all people to engage with the justice system and its processes on an informed basis.

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34
Q

Access- engagement

A

Engagement is the need for people to be able to use and participate in the justice system.

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35
Q

Access- informed basis

A

Informed basis refers to people being aware of their legal rights and the processes involved in their case. This means receiving adequate information in order to make an informed decision.

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36
Q

Victorian Legal Aid

A

Victorian legal aid is an independent, government funded agency that provides free legal information to the community and legal advice and representation to people who cannot afford to pay for a lawyer

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37
Q

VLA-free legal information

A

VLA provide free legal information for all the accused and victims on their website. This includes information about the law court processes and rights.

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38
Q

VLA- free legal advice

A

Free legal advice is available for the accused based on an income test and the legal matter. Legal advice is not available for indictable offences. Victims can seek assistance with financial compensation for losses and VLA can support victims to file an application for financial assistance.

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39
Q

VLA- duty lawyer

A

A duty lawyer is available too accused and victims in the magistrate with children’s court. A duty lawyer can only assist when victims or the accused has the income test and face significant charges. A duty lawyer is a VLA lawyer who is at court on a particular day to help people who come to court for a hearing, there is generally no prior communication with the accused.

40
Q

VLA- grant of legal assistance

A

Grants of legal assistance are only available to the accused and victims under strict circumstances and all accused must meet the means and merit test to receive a grant of legal assistance, victims are only given grants of legal assistance for very limited matters.

41
Q

income test

A

The income test is a financial threshold applied by VLA to determine whether a duty lawyer can represent an accused. The threshold is meant when the accused can show they have limited income.

42
Q

means test

A

The means test is a financial threshold that VLA applies when individuals are seeking grants of legal assistance. It is different to an income test in that it considers a person’s income and assets.

43
Q

merits test

A

The merits test is a test that applies to receiving grants of legal assistance. It is a test based upon the legal matter and seriousness of the offence.

44
Q

Community Legal Centers

A

Community legal centres are independent, government funded organisations that aim to provide free legal services for individuals including providing free legal information, advice and ongoing assistance and representation.

45
Q

Generalist CLC’s

A

Generalist CLC’s are established in designated suburbs or local government areas to serve that community.

46
Q

Specialist CLC’s

A

Specialist CLC’s are established to focus on a particular group of individuals in society that may be deemed vulnerable to receiving legal assistance.

47
Q

CLC- free legal information

A

Free legal information is available online to all accused and victims who can access the website.

48
Q

CLC- legal advice and assistance

A

Legal advice and assistance can provide face to face assistance with drafting letters completing forms and can also assist with wills resolving disputes and employment contracts.

49
Q

CLC- ongoing casework

A

Casework can be provided to the accused involving representation and assistance, and for victims casework is usually available for applications of financial assistance or family violence intervention orders. Each CLC has different eligibility requirements.

50
Q

CLC- duty lawyers

A

Duty lawyers are available to victims with family violence protection orders and are available on the day of the hearing at the magistrates court.

51
Q

plea negotiation’s

A

a plea negotiation is a private discussion that occurs within the criminal justice system in order for the accused to consider pleading to lesser charges or fewer charges.

52
Q

When plea negotiations are appropriate

A

Both the accused and prosecution must be willing to engage in a negotiation.
The accused may wish to receive a lower sentence by pleading to lesser or fewer charges.
The prosecution may have weaker case or have witnesses that will not properly be able to testify due to trauma or stress.

53
Q

When plea negotiations are inappropriate

A

The accused maintains that they are innocent.
The prosecution has a strong case and believe they will get a conviction at trial.
The victim or prosecution want the accused to receive a harsh sentence.

54
Q

Jurisdiction

A

Jurisdiction is the legal authority of a court to decide legal cases

55
Q

Original Jurisdiction

A

The power of a court to hear a case in the first instance

56
Q

Appellate Jurisdiction

A

The power of a court to a case on appeal (by reviewing the decision)

57
Q

Magistrates court jurisdiction

A

Has the original jurisdiction to hear summary offences, indictable offences heard summarily, committal proceedings, and warrant or bail applications.
Has no appellate jurisdiction.

58
Q

County court jurisdiction

A

Has the original jurisdiction to hear indictable offences (usually not homicide).
Has the appellate jurisdiction to hear appeals from the magistrates court on leniency or severity of sentencing.

59
Q

Supreme Court (Trial Division) jurisdiction

A

Has the original jurisdiction to hear the most serious indictable offences.
Has the appellate jurisdiction to hear appeals from the magistrates court on a point of law.

60
Q

Supreme Court (Court of Appeals) jurisdiction

A

Has no original jurisdiction.
Has the appellate jurisdiction to hear appeals from the county and supreme court.

61
Q

Court Hierarchy

A

The court hierarchy is a ranking of the courts based upon the severity and complexity of the cases in which they can adjudicate. Each court has its own jurisdiction which can be considered an original jurisdiction or appellate.

62
Q

Specialisation

A

Specialisation is the level of expertise gained by the judge/magistrate which is developed from hearing the same matters repeatedly. This allows for them to resolve disputes in a more consistent, efficient and fair manner.

63
Q

Appeals

A

Appeals are the application or process to have a higher court review a ruling/decision at trial when a party is dissatisfied with a a judgement

64
Q

Purpose of the Judge

A

The purpose of the judge in a trial is to act as a referee and oversee the case to ensure that court procedures are carried out in accordance with the rules to ensure that parties are treated fairly.

65
Q

Roles of the judge

A

Act impartially
Manage the trial
Decide the outcome of the case (inform jury)
Sentence the offender

66
Q

Purpose of the jury

A

The purpose of the jury is to determine the guilt of the accused through being a decider of the facts.

67
Q

Roles of the jury

A

Be objective.
Listen and remember evidence.
Understand directions and summarize.
Deliver a verdict.

68
Q

Purpose of the parties

A

The purpose of the parties is to exercise party control by deciding what and how they will present their case.

69
Q

Purpose of the Prosecution

A

The purpose of the prosecution is to represent the state and bring accused to court to answer for their crime and seek justice for the victims.

70
Q

Purpose of the accused

A

The purpose of the accused is to present their side of the case with support from their legal representatives.

71
Q

Role of the prosecution

A

Disclose information to the accused.
Participate in in the trial.
Make submissions regarding sentencing.

72
Q

Role of the Accused

A

Participate in the trial.
Make submissions regarding sentencing.

73
Q

Legal practitioners

A

Legal practitioners are individuals that are legally trained to present their cases other than the judge. They are the lawyers that hold a practicing certificate and can either represent the accused or the state.

74
Q

Barristers

A

Barristers are lawyers that are specifically trained to present the case at trial. They will stand up and address the judge and jury, present evidence, outline the facts of the case and examine witnesses.

75
Q

Solicitors

A

Solicitors are lawyers involved in preparing the case. They will locate documents, liaise with the police, obtained copies of evidence, prepare witnesses for trial, and provide the barrister with instructions for trial.

76
Q

Role of Legal Practitioners

A

Draft documents and letters for clients. Research the law.
Present evidence.
Opening and closing addresses.
Making evidence submissions.

77
Q

Cost Factors

A

Costs arise from: obtaining legal advice, representing a client in court, witness fees, delays and cost to appeal.

78
Q

Addressing cost factors

A

Cost factors are addressed by providing access to VLA and see CLC’s, the use of committal proceedings and plea negotiations.

79
Q

Time Delays

A

Time delays can arise from: court backlogs, pre-trial procedures, the collection of evidence, judges giving direction to juries, mistrials, appeal judgements and sentencing.

80
Q

Addressing time delays

A

Time delays are addressed by using plea negotiations, judge alone trials and the use of technology.

81
Q

Cultural factors

A

Cultural factors arise for individuals within the criminal justice system based on race or ethnicity. The groups impacted are: refugees, recent immigrants and First Nations people.

82
Q

Addressing cultural factors

A

Cultural factors are addressed by the use of the Koori court, providing interpreters and through the Evidence Act 2008 (Vic)

83
Q

Purposes of Sanctions

A

Rehabilitate the offender.
Punish the offender.
Deter the offender and the community. Denunciate the action.
Protect the community.

84
Q

Rehabilitation

A

Rehabilitation adopts the perspective that there is a reason or cause to be offenders actions can be addressed through the criminal justice system.

85
Q

Punishment

A

Punishment is inflicting a loss or inconvenience to ensure the offender is penalized proportionally and held accountable for their actions.

86
Q

Deterrence

A

Deterrence is the act of discouraging an offender or other individuals from reoffending or committing similar crimes. The two types of deterrence are specific deterrence and general deterrence.

87
Q

Denunciation

A

Pronunciation is publicly condemning an offenders behaviour to demonstrate society’s disapproval of the actions

88
Q

Protection

A

Protection is to ensure that the offender does not pose a significant risk to the welfare or safety of their victims and a broader society.

89
Q

Fines

A

Fines are a sanction that requires the offender to make a monetary payment as a penalty for a criminal offence.

90
Q

CCO’s

A

Community corrections orders are a non custodial order by the court that allows the offender to remain within the community under certain conditions that are attached and can be imposed alongside a fine or imprisonment.

91
Q

Imprisonment

A

Imprisonment is a sanction that removes an offender from the community and places them in prison for a given period of time. A sentence can be served concurrently or cumulatively.

92
Q

Aggravating factors

A

Aggravating factors are facts or circumstances about the offender that increase the offenders culpability and likely sentence that they will receive. They are a reflection of the evil or heinous nature all degree of harm resulting from the offence.

93
Q

Mitigating Factors

A

Mitigating factors are circumstances that a court considers when determining the appropriate sentence. this decreases the offenders culpability and may lead to a reduction in sentence.

94
Q

Guilty pleas

A

guilty pleas occur when a person admits they have committed an offence for which they have been charged.

95
Q

Victim impact statement

A

a victim impact statement is a written or verbal statement presented during sentencing about the effect of the offence on a victim. the purpose of a victim impact statement is to inform the court of the severity of the offence to the victim.

Unit 3/4 - Legal Studies (4 decks)

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