Week 3: The Criminal Process

Question 1

Adversarial model

Answer 1

A model in which there are two sides (the prosecution and the defence) and an impartial adjudicator (the judge).

Question 2

Pre-Trial Stage

Answer 2

The pre-trial stage covers the period between the police investigation and the trial or court hearing.

It commences with the police’s decision to charge a suspect with a criminal offence and includes the various decisions involved to have the case resolved before reaching court or to ensure that a contested trial runs efficiently.

The pre-trial stage is a vital point of the criminal justice process as it is where most charges are resolved, either by way of the prosecution deciding to withdraw charges or, more commonly, by the accused entering a plea of guilty.

Discretion plays an important role throughout the pre-trial process – this involves police discretion, prosecutorial discretion and judicial discretion.

Question 3

Plea Bargaining

Answer 3

‘Plea bargaining’ refers to unregulated ‘negotiations between the prosecution/police and defendants (and their legal representative) ahead of any plea’

The aim of the plea bargaining process is to make a deal where the defendant agrees to plead guilty to an offence in exchange for a benefit, either a reduction in the offence they are charged with or leniency in the agreed case facts to be considered at sentencing.

A guilty plea can be considered a sign of remorse, and conserves the courts’ resources by avoiding the expense and time of a potentially lengthy trial.

A guilty plea also avoids putting witnesses and victims through the stress of a trial and potentially, giving evidence.

Question 4

The Criminal Trial

Answer 4

The purpose of the criminal trial is to determine the guilt or innocence of the defendant, or, more accurately, to determine whether the prosecution can establish beyond reasonable doubt that the defendant is guilty of the offence(s) charged.

Question 5

four key parties in the Victorian Supreme Court

Answer 5

The judge has the role of an impartial umpire.

The jury listens to the evidence and witnesses that are presented throughout the trial and evaluates the evidence as it is presented to them.

The prosecution presents the evidence against the defendant.

The defence represents the best interests of the defendant and ensures that a fair trial occurs and that evidence supporting the innocence of the defendant is presented to the court.

Question 6

Legal Representation

Answer 6

A fair trial requires a defendant charged with a serious criminal offence to be legally represented unless there are exceptional circumstances preventing this to occur.

Where a defendant is unrepresented, and through no fault of their own cannot obtain legal representation, the trial should be adjourned, postponed or stayed until legal representation becomes available.

Question 7

Impartial Jury

Answer 7

This means that jurors should not have formed any views of the case before the trial, or from extrinsic sources during the trial, which are so strong that they could not be displaced by evidence and argument in the court

The role of the jury is to decide the case according to the relevant law and the admissible evidence

Question 8

The Judiciary

Answer 8

members of the judiciary act as an impartial umpire in criminal proceedings.

The role of the judge during a criminal trial is to steer each party (the prosecution and the defence) into presenting their case in an orderly fashion that ensures the trial is carried out fairly and efficiently.

While appointed by the Attorney General, members of the judiciary should be independent from government influences, media coverage and community debate.

Question 9

Judicial Independence

Answer 9

At an institutional level, judicial independence refers to the ability of the judiciary to function without interference from the government or other external influences.

Question 10

Factors relating to judicial independence and impartiality include:

Answer 10

The expectation that when deciding cases, judges and magistrates will only base their decisions on legally relevant considerations and will exclude personal, subjective or irrelevant consideration;

If a party can establish that the judge was ‘biased’, then the Court of Appeal may quash the verdict and order a new trial;

A general reluctance of judges to speak out publicly on contentious political issues or to comment publicly on cases they have tried;

The expectation that judges will not be an office bearer of any political party or be involved in boards of corporations. In this respect, the appearance of impartiality is held just as important as impartiality itself.

Judicial independence is closely related to the separation of powers doctrine.

Question 11

Judicial Accountability

Answer 11

All courts – other than the Children’s Court or in individual cases that have a justifiable reason to be closed from the public, for example sexual assault cases involving vulnerable witnesses – are required to be open to the public.

In addition to accountability through open and public justice, all convictions and sentences can be appealed to a higher court.

Question 12

The Purposes of Sentencing

Answer 12

The five purposes of sentencing are:

Just punishment;

Deterrence of the defendant (specific) and others (general) from committing similar offences;

The establishment of conditions for the rehabilitation of the defendant;

Denunciation of the defendant’s conduct;

The protection of the community from the defendant.

Question 13

Mitigating and aggravating factors from section 5(2) of the Victorian Sentencing Act 1991 include:

Answer 13

(a) the maximum penalty prescribed for the offence; and

(b) current sentencing practices; and

(c) the nature and gravity of the offence; and

(d) the offender’s culpability and degree of responsibility for the offence; and

(daaa) whether the offence was motivated (wholly or partly) by hatred for or prejudice against a group of people with common characteristics with which the victim was associated or with which the offender believed the victim was associated; and

(daa) the impact of the offence on any victim of the offence; and

(da) the personal circumstances of any victim of the offence; and

(db) any injury, loss or damage resulting directly from the offence; and

(e) whether the offender pleaded guilty of the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so; and

(f) the offender’s previous character; and

(g) the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances.