Studied by 6 peopleTags & Description
complainant
a person against whom an offence is alleged to have been committed (a person who has complained to the police)
access
one of the principles of justice access means that all people should be able to understand their legal rights and pursue their case
accused
a person charged with a criminal offence
aggravating factors
circumstances considered in sentencing that can increase the seriousness of the offence or the offender's culpability (i.e. responsibility) resulting in a more severe sentence Examples:
Violence or use of weapons
Vulnerabilities of the victim
The nature and gravity of the offence
A breach of trust (i.e. parent abusing a child).
bail
the release of an accused person from custody on condition that they will attend a court hearing to answer the charges
community correction order (CCO)
a non-custodial sanction (i.e. one that doesn't involve a prison sentence) that the offender serves in the community, with conditions attached to the order \n Effective for protection, specific deterrence, punishment and especially rehabilitation \n Not effective for general deterrence or denunciation
community legal centre (CLC)
an independent organisation that provides free legal services to people who are unable to pay for those services. Some are generalist CLCs and some are specialist CLCs
conviction
a criminal offence that has been proved. Prior convictions are previous criminal offences for which the person has been found guilty
Costs factors in criminal justice system
High cost of legal rep reduces ability of the criminal justice system to achieve fairness, equality and access \n Legal aid can assist, however, it is limited \n Courts can provide assistance to self-represented parties
Cultural differences
Indigenous Australians face difficulties accessing the criminal justice system due to:
Language barriers
Body language
Shyness and submissiveness This can significantly reduce the ability of the criminal justice system to achieve fairness, equality and access for Indigenous Australians.
defendant
(in a civil case) a party who is alleged to have breached a civil law and who is being sued by a plaintiff
denunciation
one purpose of a sanction a process by which a court can demonstrate the community's disapproval of the offender's actions, generally with a longer prison sentence or larger fine
deterrence
one purpose of a sanction a process by which the court can discourage the offender and others in the community from committing similar offences
equality
one of the principles of justice equality means people should be equal before the law and have the same opportunity to present their case as anyone else, without advantage or disadvantage
fairness
one of the principles of justice fairness means having fair processes and a fair hearing For example:
the parties in a legal case should have an opportunity to know the facts of the case and have the opportunity to present their side of events and
the pre-hearing and hearing (or trial) processes should be fair and impartial
fine
a sanction that requires the offender to pay an amount of money to the state
Strong for punishment, deterrence and denunciation (if large enough)
Not effective for protection or rehabilitation
guilty plea
when an offender officially admits guilt which is then considered by the court when sentencing
imprisonment
a sanction that involves the removal of the offender from society for a stated period of time and placing them in prison. Results in a loss of liberty.
Effective for protection, punishment, deterrence, and denunciation
Not effective for rehabilitation (due to influence of other prisoners)
Education and treatment programs do aim to rehabilitate
indictable offence
a serious offence generally heard before a judge and a jury in the County Court or Supreme Court of Victoria
eg.
Homicide offences (murder, manslaughter)
Culpable driving
Drug trafficking
Armed robbery
Serious assaults
indictable offence heard and determined summarily
a serious offence which can be heard and determined as a summary offence if the court and the accused agree
Koori Court
a division of the Magistrates' Court, Children's Court and County Court that (in certain circumstances) operates as a sentencing court for Aboriginal people
legal aid
legal advice, education or information about the law and the provision of legal services (including legal assistance and representation)
mitigating factors
"circumstances considered in sentencing that reduce the seriousness of the offence or the offender's culpability and lead to a less severe sentence Examples:
offender was provoked by the victim
offender showed remorse
offender has no record of previous convictions
Early guilty plea
Offender was young or had mental impairment
presumption of innocence
the right of a person accused of a crime to be presumed not guilty unless proven otherwise upheld by:
burden on prosecution
high standard of proof (beyond reasonable doubt)
bail.
prosecutor
the Crown in its role of bringing a criminal case to court (also called 'the prosecution')
protection
one purpose of a sanction a strategy designed to safeguard the community from an offender in order to prevent them from committing further offence (e.g. by imprisoning them)
punishment
one purpose of a sanction a strategy designed to penalise (i.e. punish) the offender and show society and the victim that criminal behaviour will not be tolerated
purpose of committal hearings
"decide whether there is sufficient evidence to support a conviction for the offence charged \n allow an early guilty plea \n allow the accused to see the evidence against them \n determine whether the case is suitable to be heard summarily
purpose of plea negotiations
pre-trial discussions that take place between the prosecution and the accused, aimed at resolving the case by agreeing on an outcome to the criminal charges laid Purpose is to:
ensures a guilty plea
likely lesser sentence for the offender
saves time and cost of trial
however, can be seen as soft
people may plead guilty for strategic reasons, even if they are innocent
REASONS FOR A COURT HIERARCHY \n appeals
If dissatisfied with a decision, can appeal to a higher court
Provides fairness
Allows for mistakes to be corrected Not possible without court hierarchy.
REASONS FOR A COURT HIERARCHY \n specialisation
Courts develop expertise in their jurisdiction. \n Lower courts can hear minor cases efficiently. \n Higher courts are expert in hearing more complex cases \n Specialist courts such as Children's Court and Coroner's Court deal with specific areas of law.
recidivism
re-offending returning to crime after already having been convicted and sentenced
rehabilitation
one purpose of a sanction a strategy designed to reform an offender in order to prevent them from committing offences in the future
responsibilities of legal practitioners in a criminal trial
Undertake the role of preparing and conducting a case on behalf of the parties They are responsible for:
Preparing the case
Complying with their duty to the court
Presenting the case in the best light.
responsibilities of the judge in a criminal trial
Role is to be an independent, unbiased umpire who:
Manages the trial
Decides on admissibility of evidence
Attends to jury matters
Gives directions to the jury and sum up the case
Hands down a sentence
responsibilities of the jury in a criminal trial
Trial by peers Independent decision-maker Responsible for:
Listening to all the evidence
Applying the points of law as explained by the judge
Putting aside prejudices or preconceived ideas
Taking part in deliberations
Making a decision on the facts.
responsibilities of the parties in a criminal trial
Each party has control over their case They are responsible for:
Giving an opening address
Assisting the judge in jury matters
Presenting the party's case
Giving a closing address
Making submissions about sentencing.
right to a fair hearing
an accused is entitled to have the charge decided by a competent, independent, and impartial court after a fair and public hearing.
right to a trial by jury
an accused has the right to trial by jury. This right is protected by:
the Australian Constitution (limited to Cth. indictable offences -there are very few Cth. indictable offences) and
statute law in Victoria: the Criminal Procedure Act requires a jury for indictable offences. There is no right to a jury for summary offences.
right to be informed about the proceedings
Victims are entitled to certain information about the proceeding and about the criminal justice system, including: support services, possible compensation entitlements, and the legal assistance available. Police must keep victims informed about the progress of an investigation. The prosecution must inform victims of:
the details of the offence
if no offence is charged, the reason why
how the victim can find out date, time and place of the hearing
the outcome of the criminal proceeding, including any sentence and
details of any appeal. Victims must be told they can attend any court hearings.
right to be informed of the likely release date
A victim of a criminal act of violence may apply to be included on the Victims Register. They will then be informed of the likely date of release for the offender. They must be informed at least 14 days before release.
right to be tried without unreasonable delay
an accused is entitled to have their charges heard in a timely manner. Delays should only occur if they are considered reasonable. Everyone is entitled to this right 'without discrimination', regardless of things such as prior history, or personal attributes.
right to give evidence as a vulnerable witness
a person who is required to give evidence in a criminal case and is considered to be impressionable or at risk, they have the right to give evidence as a vulnerable witness. \n Protections available include giving evidence via CCTV or to not have the accused in the same room as them.
sanction
a penalty (e.g. a fine or prison sentence) imposed by a court on a person guilty of a criminal offence
sentence indication
a statement made by a judge to an accused about the sentence they could face if they plead guilty to an offence
summary offence
a minor offence generally heard in the Magistrates' Court
Driving while disqualified
Parking fines
Public drunkenness
Minor property damage
the standard of proof in criminal cases
beyond reasonable doubt. This requires the prosecution to prove there is no reasonable doubt that the accused committed the offence
Time factors
Delays are a big issue in our legal system, due to:
Limited court resources
Increasing number of criminal cases
Unnecessary committal hearings
If accused changes lawyers
Delays lead to:
Increased stress, costs and financial hardship
Reduced access
victim
a person who has suffered directly or indirectly as a result of a crime
victim impact statement
a statement filed with the court by a victim, and considered by the court when sentencing. It contains particulars of any injury, loss or damage suffered by the victim as a result of the offence
Victims Register
a register (i.e. database) maintained by the state of Victoria set up to provide the victims of violent crimes with relevant information about adult prisoners while they are in prison (e.g. the prisoner's earliest possible release date)
Victoria Legal Aid (VLA)
a government agency that provides free legal advice to the community and lowcost or no-cost legal representation to people who can't afford a lawyer
appellate jurisdiction
the power of a court to hear a case on appeal;
Vulnerable witness
A person considered to be impressionable or at risk such as children, victims of sexual violence and those with cognitive impairments. Special arrangements may be made for them to testify
EVALUATE COMMITTAL HEARINGS Allows accused to challenge evidence:
The accused is able to test the evidence against them This includes questioning prosecution witnesses May lead parties to agree on facts or issues, saving time at trial However:
Oral evidence can add to delays
Requires legal rep, which is expensive
EVALUATE COMMITTAL HEARINGS \n Informs accused of evidence against them
Allows accused to be informed of the case against them Helps decide whether to plead guilty or not guilty Helps them to prepare their case Places them on equal footing with the prosecution However:
Committals are very complicated
Require legal rep, which is expensive
This can lead to an unfair outcome if the accused is unrepresented or has inferior legal rep.
EVALUATE COMMITTAL HEARINGS \n Onus on prosecution:
The prosecution must establish that there is enough evi- dence to go to trial \n If they can't do this the accused is discharged \n Ensures the accused doesn't have to face trial if there is insufficient evidence
This supports the presumption of innocence However
Committals increase stress and trauma for the accused, the victim and their families
This can mean victims don't wish to give evidence, reducing access and increas- ing the chance of an unfair outcome.
EVALUATE COMMITTAL HEARINGS \n Save time and resources"
By filtering out cases with insufficient evidence, committal hearings: save time of an unnecessary trial, and reduce the burden on the courts However:
Committals can add to the delay of getting a case to trial
Can reduce access and increase chance of an unfair outcome
Some have called for committals to be abolished.
EVALUATE PLEA NEGOTIATIONS \n Reduced sentence:
There are advantages for the accused who may receive a reduced sentence because of an early guilty plea However:
An innocent person may feel pressured into accepting a deal
Rather than taking the chance of being found guilty at trial of a more serious offence and receiving a longer sentence
EVALUATE PLEA NEGOTIATIONS \n Reduces delays and costs:
By ensuring an early guilty plea:
Helps with the prompt determination of criminal cases
Saves costs of a full trial or hearing
Increases public confidence in the legal system However:
The community and victims may feel the negotiations have resulted in the accused getting a lenient sentence.
EVALUATE PLEA NEGOTIATIONS \n Reduces stress and trauma":
Victims and witnesses are saved the trauma, inconvenience and distress of the trial process A trial means they may have to relive the crime and hear evidence that may be distressing However:
May be seen as the prosecutor avoiding the need to prove the case beyond reasonable doubt
This undermines the presumption of innocence
EVALUATE SENTENCE INDICATIONS \n Early determination of the case":
Can result in the early determination of the case
This results in prompt justice rather than delayed justice
Saves money and court resources of trial
Reduces trauma, stress, inconvenience of victims + witnesses However:
It denies the victim their 'day in court'
They may want to see justice occur with a guilty verdict
However, many victims are traumatised by the trial experience
Sentence indications can avert that trauma.
EVALUATE SENTENCE INDICATIONS \n Greater certainty:
Gives greater certainty about the sentence
Avoids risk of finding out at the end what the sentence will be
Indication is given by an experienced and impartial judge
Accused is not bound to accept the indication and plead guilty However:
For indictable offences, court only needs to indicate if it would impose an immediate term of imprisonment (not the length)
This provides less certainty about the type or length of sentence
Indication may be given before all the facts have been proved
May disadvantage an offender, as it commits them to a sentence that might be less after a trial.
EVALUATE SENTENCE INDICATIONS \n Lesser sentence:
If the accused pleads guilty at the earliest possible time:
summary - can't receive a greater sentence than was indicated
indictable - can't receive a term of imprisonment if the judge indicated that there would be no term of imprisonment However:
The judge is not obliged to grant the accused's request
For indictable offences, the prosecutor must consent
This limits the availability of sentence indications
Means an accused who may have been willing to plead guilty if given a sentence indication is unable to.
EVALUATE SENTENCE INDICATIONS \n Transparency / Lack of transparency
A sentence indication can be given in open court
This means there is transparency in the indication
As opposed to the secrecy of plea negotiations However:
The court can close a proceeding when an indication is given
This means there will be a lack of transparency.
imprisonment
a sanction that involves the removal of the offender from society for a stated period of time and placing them in prison. Results in a loss of liberty.
Effective for protection, punishment, deterrence, and denunciation
Not effective for rehabilitation (due to influence of other prisoners) - Education and treatment programs do aim to rehabilitate
indictable offence heard and determined summarily:
a serious offence which can be heard and determined as a summary offence if the court and the accused agree
purpose of plea negotiations
pre-trial discussions that take place between the prosecution and the accused, aimed at resolving the case by agreeing on an outcome to the criminal charges laid Purpose is to:
ensures a guilty plea
likely lesser sentence for the offender
saves time and cost of trial
however, can be seen as soft
people may plead guilty for strategic reasons, even if they are innocent
right to be informed about the proceedings:
Victims are entitled to certain information about the proceeding and about the criminal justice system, including: support services, possible compensation entitlements, and the legal assistance available. Police must keep victims informed about the progress of an investigation. The prosecution must inform victims of:
the details of the offence
if no offence is charged, the reason why
how the victim can find out date, time and place of the hearing
the outcome of the criminal proceeding, including any sentence and - details of any appeal. Victims must be told they can attend any court hearings.
right to be informed of the likely release date:
A victim of a criminal act of violence may apply to be included on the Victims Register. They will then be informed of the likely date of release for the offender. They must be informed at least 14 days before release.
right to be tried without unreasonable delay
an accused is entitled to have their charges heard in a timely manner. Delays should only occur if they are considered reasonable. Everyone is entitled to this right 'without discrimination', regardless of things such as prior history, or personal attributes.
right to give evidence as a vulnerable witness:
a person who is required to give evidence in a criminal case and is considered to be impressionable or at risk, they have the right to give evidence as a vulnerable witness. \n Protections available include giving evidence via CCTV or to not have the accused in the same room as them.
How does this right uphold the principles of justice?
Ensure fairness so that accused persons do not suffer prolonged anxiety, stress and stigma of having to wait.
Inadvertently ensures access for other accused persons, as this will reduce the backlog of cases in the court system.
CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT 2006 - SECT 25 (s. 2c)
(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees - (c) to be tried without unreasonable delay.
Elements of a fair hearing
The right to be heard by ‘competent, independent and impartial’ tribunal
The right to a public hearing
The right to counsel
The right to interpretation
The right not to be tried or punished more than once (‘double jeopardy’)
The right to be heard within a reasonable time
The right to a jury of an accused person’s peers
What might impede a fair trial?
Contempt of court
Witness intimidation
Non-disclosure of evidence
CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT 2006 - SECT 24
A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
Despite subsection (1), a court or tribunal may exclude members of media organisations or other persons or the general public from all or part of a hearing if permitted to do so by a law other than this Charter.
Juries in Victoria
The law regulating jury trials in Victoria is the Juries Act 2000 (Vic) (Juries Act). The Juries Act sets out who is eligible for jury duty how a jury is to be selected, empanelled, and how a jury is to operate.
In a criminal trial the accused may peremptorily challenge six prospective jurors and the prosecution may stand aside six prospective jurors.
Jury composition to uphold the principles of justice
There are two key principles that underpin jury composition: representativeness and impartiality.
Representativeness
means that any one jury should be *an accurate reflection of the composition of [Victorian] society, in terms of ethnicity, culture, age, gender, occupation, socio-economic status (etc.) (*definition used by the Victorian Parliament Law Reform Committee in its 1996–97 review of jury service in Victoria).
Juries should be selected at random from a jury pool of citizens who have met the eligibility and qualification criteria
Impartiality
means that jurors should not possess biases or preconceived notions that would hinder their ability to judge the evidence in a case fairly. This is achieved through the random selection process as well as the ability of a court to excuse a person for a person connection to the accused, the victim or witnesses
Recent reforms
Recent reforms’ refers to initiatives through which the criminal justice system may be improved which have been implemented.
Recent = last 4 years
Describe reform AND impact on fairness, access and equality
No. 1: Abolishing de novo appeals in the County Court (2018)
Before reform: Offender found guilty in Magistrates’ Court appeals to the County Court, the County Court conducted the entire trial again – all victims, witnesses, etc. gave evidence again.
Appeal = new hearing in the County Court (a ‘de novo’ appeal). New process: appeals determined on:
– Transcripts of evidence presented in Magistrates’ Court \n – The magistrate’s reasons for the decision/sentence imposed – Legal arguments presented in the County Court
No. 1: Abolishing de novo appeals in the County Court (2018) - Fairness (achieved)
Archived: Prevents witnesses and victims needing to give evidence in court multiple times = ↓ stress and anxiety = fair.
Without needing to hear all evidence anew, County Court should resolve appeals more quickly, ↓ delays for offenders = fair.
No. 1: Abolishing de novo appeals in the County Court (2018) - Access (achieved)
Archived: Ability to appeal the sentence/guilty verdict is maintained by this reform; access to a review of a magistrate’s decision is not ↓
No. 1: Abolishing de novo appeals in the County Court (2018) - Equality (achieved)
Archived: All offenders retain right to appeal to County Court against guilty verdict and/or sentence; process changes but equal access to appeals does not.
No. 1: Abolishing de novo appeals in the County Court (2018) (Not achieved)_ Fairness
Not achieved: Only 2% of criminal matters in Magistrates’ Court appealed to County Court, this ↓ delays for a very small % cases (on appeal) and reduces only slightly delays for other matters in County Court.
No. 1: Abolishing de novo appeals in the County Court (2018)(Not achieved) _ Access
Not achieved: Presenting legal grounds for appeal is complex, requiring legal representation to ensure appellant’s case presented in best light; reform does not make legal representation needed for a well-presented appeal more accessible.
No. 1: Abolishing de novo appeals in the County Court (2018) (Not achieved) _ Equality
Not achieved: Only a very small % of cases appealed from the Magistrates’ Court to the County Court (approximately 2%). This is also a small proportion of the County Court’s workload.
Recommended reforms tip:
Recommended = proposed by legal experts, law reform bodies, etc.
NOT something you’ve invented yourself!
Describe reform AND impact on fairness, access and equality
Recommended reforms
Recommended reforms’ refers to initiatives through which the criminal justice system may be improved which have not yet taken place
Recommended reforms
No. 1: Abolish peremptory challenges/prosecution stand-asides in the process of empanelling a jury.
Currently an accused person can challenge (and the prosecution can stand-aside) a small number of prospective jurors during the empanelment process. The parties to a criminal case:
Know very little about each potential juror
Do not question jurors prior to their empanelment; and
Do not need to give reasons for such a challenge/stand aside.
Note
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