Victorian Criminal Justice System

Question 1

Outline and describe the three principles of justice

Answer 1

Equality: people should be equal before the law and have the same opportunity to present their case as anyone else, without disadvantage or advantage.
Access: people should be able to understand their legal rights and pursue their case.
Fairness: having fair processes and a fear hearing. Parties in a legal case should have the opportunity to know the facts of the case and have an opportunity to present their case to a third party free of bias and impartial.

Question 2

Distinguish between summary and indictable offences

Answer 2

Summary offences are minor criminal offences like traffic violations, heard in the magistrates court. Whereas a indictable offence is instead a serious criminal offence like murder, hear in the County or Supreme court.

Question 3

Define Burden of proof and standard of proof in a criminal case

Answer 3

The burden of proof is the onus on the party bringing the action to provide evidence to corroborate their claims. In a criminal case this is the prosecution. The standard of proof is the threshold of proof required to gain a conviction. At a criminal trail this is defined as beyond reasonable doubt.

Question 4

Define the presumption of innocence and explain how it is supported

Answer 4

This means every person accused of a crime is considered innocent until proven guilty of the offence. Shown in systems like bail, which allows accused to be released until their trail begins if they pose little or no risk to the community. The stipulation that the prosecution must prove the accused guilt through the burden of proof, and not that the accused is required to produce evidence to exonerate oneself. (Also the right of silence, and the standard of proof)

Question 5

What are the three main rights of the accused and what is their purpose?

Answer 5

The three main rights of the accused under the Charter of Human Rights and Responsibilities (Vic 2006) are:
To be tried without unreasonable delay. The purpose of this is so that evidence cannot become faulty over time and to uphold the presumption of innocence.
The right to a fair hearing with the case being heard before an unbiased and impartial judge/ jurors. The purpose of this is to better achieve the principle of fairness for the accused.
The presumption of innocence, in which an accused is presumed innocent until proven guilty of an offence. The purpose of this is to better achieve equality and fairness for the accused.

Question 6

What are the three main rights of the accused and how are they guaranteed?

Answer 6

The main rights of the accused under the Charter of Human Rights and Responsibilities (Vic 2006) are:
To be tried without unreasonable delay. this is guaranteed by the Criminal Penalties Act 2009 Vic that sets the time limits for an accused to be brought to trail.
The right to a fair hearing. This is guaranteed by the presence of an independent, competent and unbiased judge/ magistrate. Also the public nature of the cases means any action is open to public scrutiny discouraging unfair or biased decisions.
Presumption of innocence. This is guaranteed by access to the bail system to be released into the community until the determination of the case. Also the burden and standard of proof required to be provided by the prosecution to secure a conviction.

Question 7

What are the three main rights of the victims and what is their purpose?

Answer 7

The three main rights of a victim under the Victims Charter Act (Vic 2006) are: to give evidence as a vulnerable witness, to be informed of the proceedings and to be made known of the likely release date of the offender. The latter two are only available to those who have suffered significant injury or trauma.
Protections for victims giving evidence as a vulnerable witness include: being able to give evidence via closed circuit television, be questioned by a plain clothed barrister, or to have screens erected in the courtroom separating the witness and the accused. This is for the purpose of minimising and emotional trauma from the recounting their evidence or from their experience in the court.
Victims have a right to know procedural information on the case including the sanctions, appeal dates, the police investigation and the wider criminal justice system. This is for the purpose of allowing the victim to regain confidence in the justice system and feel secure in the wider community.
Victims have a right to be notified of the offenders release date at least 14 days prior, and can apply to be placed on a victims register if they are victims of criminal acts of violence. This is for the purpose of allowing the victim to feel safe in the community.

Question 8

What are aggravating factors?

Answer 8

Aggravating factors are factors taken into account during sentencing that increase the offenders level of culpability in committing of the offence which will lead to a harsher sanction. Eg use of a weapon.

Question 9

What are mitigating factors?

Answer 9

Mitigating factors are factors taken into account during sentencing that decrease the offenders level of culpability in committing the offence which will lead to a lighter sanction. Eg no previous criminal record or intoxication.

Question 10

Outline and describe the types of sanctions

Answer 10

Fines are a monetary sum that has to be paid by the offender to the court as punishment for an offence.
Imprisonment is the sanction of last resort, where and offender is removed from the community for a specified period of time.
Community corrections orders (CCO’s) are custom made orders given by the courts to an offender. They can be mandatory, forcing them to undertake x. Or restrictive, forcing them to abstain from x.

Question 11

Outline the purpose of sanctions

Answer 11

Deterrence (both general and specific), rehabilitation, denunciation, punishment and protection.

Question 12

What is the role of Victorian legal aid?

Answer 12

(VLA) To provide legal representation to those who cannot afford it. Equitable access to legal support throughout Victoria.

Question 13

What is the role of community legal centres?

Answer 13

(CLC) To provide, advise, inform people without access to other services legal support. They provide duty lawyers for mattes that can be dealt with in one day based on the estimated chance of success and the ability of the individual to manage without the CLC’s help.

Question 14

Define committal hearings and its purpose.

Answer 14

A pre trail procedure taking place in the Magistrates court in which the accused enters their plea, and the judge determines if there is sufficient weight of evidence for a trail.
Its purpose is to filter out weak cases, allow the accused a opportunity to enter their plea, and allow the prosecution to drop charges before trail.

Question 15

Explain plea negotiations.

Answer 15

Discussions between the prosecution and defence regarding the charges of the accused. These are to be held without prejudice (if they fail nothing said can be used), and these discussions do not affect the sanction the judge gives. The purpose is to encourage early conclusions of trails through a plea of guilty.

Question 16

Explain sentence indications.

Answer 16

When the court informs the accused of the sanction they will receive if they plead guilty at any one time. The accused must apply for this, and the prosecution must approve. If the accused pleads guilty once receiving the sentence indication, the judge is bound to respect it. However if they found guilty at the conclusion of the trail they are not bound to follow it.
The purpose is to provide the accused with clarity about the sentence likely faced, and encourage early determination of trails.

Question 17

Outline the structure of the Victorian court hierarchy.

Answer 17

magistrates court, county court, supreme court trial division, supreme court appeals division.

Question 18

Outline two reasons for the Victorian court hierarchy.

Answer 18

Specialisation. By hearing and resolving specific types of offences, each court develops an expertise in a certain area allowing them to become more adept at resolving those specific disputes.
Appeal. If we did not have a court hierarchy and all courts were on the same level, no one court would have higher jurisdiction then another. Meaning no one court could hear appeals from lower courts.

Question 19

Outline three factors that decrease the appropriateness of plea negotiations.

Answer 19

Decrease: Downgrading charges as a result of negotiation may have negative public reception.
Closure for victims may never be fully had.
Prosecution may gain guilty verdicts when they don’t have a large amount of evidence through coercion.

Question 20

Outline three factors that decrease the appropriateness of sentence indications.

Answer 20

Decrease: Denies the victim their day in court.
Indications can be given before evidence is confirmed or presented that may have resulted in different indication.
In indicatable offences it is only expressed in imprisonment, not the specific term of imprisonment.

Question 21

Outline three factors that increase the appropriateness of sentence indications.

Answer 21

Trials can be determined early, with less cost.
The transparency of an open court means it can be seen by the public.
The jury is not informed of the indication, so as not to effect their decisions.

Question 22

Outline three factors that increase the appropriateness of plea negotiations.

Answer 22

It ensures a guilty outcome.
Victims can be spared the potential trauma of giving evidence.
Less cost to taxpayers.
Negotiations are held without prejudice, so no risk.

Question 23

Outline the effects of the expansion of the Koori court as a recent criminal reform.

Answer 23

In 2018 the Koori courts expanded into Shepperton. Allowing any aboriginal persons who have pleaded guilty to indictable offences not of a sexual nature or related to domestic violence, to be sentenced here. This court recognises the differences in communication and values within the aboriginal community with the usage of Aboriginal Elders who support the judge in sentencing. Effects:
Increases fairness by the culturally relevant sentencing.
Increases Access by the increased ability for aboriginals to be sentenced in Koori courts.
Decreases access by the barriers for entry for Aboriginals to be sentenced here.
Decreases fairness, because anyone sentenced here is not treated as they normally would be.

Question 24

Outline the effects of the changes to criminal appeals system in the county court as a recent criminal reform.

Answer 24

In 2019, de novo appeals (court hears all evidence again in a new hearing to determine appeal outcome) were abolished. Allowing courts to conduct appeals by paperwork and not require the case to be re presented.
Saves time and money by increased efficiency.
However may result in less people making appeals because they are not confident in the process, and also less appeals being successful.

Question 25

Outline the arguments for and against the abolition of committal proceedings as a recommended criminal reform.

Answer 25

In 2020 the VLRC released the report on potential reforms to the committal proceedings in Victoria after having the matter referred to the commission by the Attorney General. Arguments for:
Committal proceedings uphold presumption of innocence by the DPP having the burden and standard of proof.
Allow the accused to make plea with knowledge of the evidence.
Allow for legal issues and witnesses to be cross examined before trail, saving time and money.
Arguments against:
DPP can overrule the judges decision that a case doesn’t have enough evidence, so it can be waste of time and money.
Very expensive and timely process, decreasing access.
In cases with a lot of evidence they are unnecessary.

Question 26

Outline the arguments for and against the implementation of judge only trails as a recommended criminal reform.

Answer 26

Gives the accused the ability to request a judge only trail in cases with “high profiles” to eliminate the threat of a biased jury.
This would increase fairness because the judge will be unbiased and guarantee the accused a fair verdict based on the objective evidence, which is not guaranteed by the jury.
However this would decrease equality, because allowing only “high profile” people to have judge only trials will result in them being treated differently from the rest of the population before the court.