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Legal Studies Unit 3/4 > Unit 3 Outcome 1 > Flashcards

Unit 3 Outcome 1 Flashcards

1
Q

Access (Criminal) Definition

A

individuals in society - including accessed persons, victims & witnesses - having an ‘understanding of legal rights and an ability to pursue their case’

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2
Q

Fairness (Criminal) Defintiion

A

fair legal processes are in place, and all parties receive a fair hearing

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3
Q

Equality (Criminal) Definition

A

all people treated equally before the law, with an equal opportunity to present their case

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4
Q

Burden of Proof - Definition

A

Which party is responsible to prove the facts of a case

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5
Q

Standard of Proof - Definition

A

Strength of evidence required to support a case

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6
Q

Indictable Offences

A

Serious Criminal Offences

Tried by a judge and jury in a higher court

Severe Sanctions

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7
Q

Summary Offences

A

Minor Criminal Offence

Tried in the Magistrates Court

Minor Sanctions

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8
Q

Presumption of Innocence (+section)

A

guarentee to all accused persons that they are innocent until proven otherwise
Protected in section 25 of the Charter of Human Rights and Responsibilties

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9
Q

Rights of the Accused (x3)

A
  • Right to be tried without unreasonable delay
  • Right to a fair hearing
  • Right to a trial by jury
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10
Q

Right to trial by jury (+legislation/section of constitution, circumstances)

A

Right to be tried by an unbiased jury composed of the accused persons peers.

Protected by Criminal Proceedure Act and Section 80 of the Consitutiton

Only applies to indicatable offences and when the accused has not plead guilty

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11
Q

Right to a fair hearing (+ section/act)

A

Right of an accused person to have their case heard fairly, publicly and presided over by a competent unbiased and independent court
Protected in Section 24(1) of the CoHRaRA

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12
Q

Right to a fair hearing - examples (x3)

A
  • consistent rules of evidence
  • ability to cross-examine witnesses to test accuracy of evidence
  • accused is allowed to present a defence
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13
Q

Reasons to exclude someone from a public trial

A

If they will detract attention away from the proceedings or intimidate/distress a witness

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14
Q

Right to be tried without unreasonable delay (+ section/act)

A

Right of an accused person to have their case determined in a timely fashion - unless there are reasons why their case should be delayed
Protected by Section 25(2)(c) of CoHRaRA

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15
Q

Factors to determine the unreasonableness of the delay (x6 + the case that it came from)

A
  • Length of Delay
  • Reason for Delay
  • Complexity of the case
  • Case backlogs in court
  • Availability of resources
  • Impact on the victim and the accused

Shown in R v Upton

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16
Q

Victims Rights

A
  • Right to give evidence as a vulnerable witness
  • Right to be informed about proceedings
  • Right to be informed of the likely release date of the offender
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17
Q

Right to be informed of the likely release date of the accused - victims register (+ things the victims register will advise of)

A

Government record of all victims of serious crimes - those on the list will be notified about the likely release date of the offender (given in multiple languages).

serious crimes e.g. assault, armed robbery, murder

victims register will advise victims of:
- length of offenders sentences
- earliest possible release date
- whether the offender applies for/is released on parole
- if the parole is cancelled

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18
Q

Right to give evidence as a vulnerable witness - accommodations that can be made

A
  • giving evidence by CCTV
  • giving evidence behind a screen
  • individuals (that could indimitate the witness) being barred from entering the courtroom
  • court preventing parties from asking improper questions (e.g. misleading, insulting, confusing, sterotypical)
  • if the accused is representing themselves, not allowing the accused to question the witness
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19
Q

Right to give evidence as a vulnerable witness (+ condition)

A

When someone is considered ‘vulnerable, certain arrangements, deemed allowable by the court, should be made to accommodate them.

only is applicable if the accused has plead not guilty

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20
Q

Right to be informed about the proceeding

A

provides that victims of a crime to be knowledgeable about the case in which they are involved in.

Information provided by OPP and VicPolice

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21
Q

Right to be informed about proceedings - information contained (x4)

A
  • offences the accused has been charged with
  • if the charges were withdrawn or changed
  • key developments in the case
  • outcomes of a trial (sanction/verdict)
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22
Q

Right to be informed of the likely release date of the accused

A

Provides that victims of some crimes will be notified about the likely release date of the offender

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23
Q

Right to give evidence as a vulnerable witness - definition of vulnerable

A

Those considered to be easily impressionable (to the point that evidence could be compriomised) are considered vulnerable.

Also those who:
- under the age of 18
- suffer from a mental disability
- victim of a sexual offence
- victim of family violence

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24
Q

VLA

A

Victorian Legal Aid
Government funded agency that provides free legal advice and information regarding a range of disputes

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25
Q

Role of the VLA (x4)

A
  • publishing information
  • providing free initial legal advice
  • providing funds to engage legal representation
  • providing duty lawyers
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26
Q

CLC

A

Community Legal Centres
Not for profit, community based organizations that provide free legal advice, casework and information to their local communities

CLCs are independent, and thus all provide different services

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27
Q

Role of CLC’s (x3)

A
  • information, legal advice and minor assistance
  • Legal casework services
  • legal representation in a small number of cases
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28
Q

CLC - who works there

A
  • lawyers employed by the CLC
  • lawyers/law students who donate their time to provide legal assistance
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29
Q

Committal Proceedings

A

Committal Proceedings are hearings to ensure that jury trials are only conducted if there is a reasonable chance the accused person will be found guilty.
Used to determine if a prima facie case exists (prima facie - on the face of it)

Only used for indictable offenses

Magistrate does not decide if the accused is guilty

DPP can override them if they wish

Reason: jury trials come with significant costs and take a long time to conclude.

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30
Q

Committal Proceedings - hearing

A

Conducted in magistrates court

Prosecution provides a handup brief (written-form) which contains their case

At the conclusion, if the magistrate decides there is enough evidence - the trial continues, if the magistrate decides there isnt - the accused is dismissed

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31
Q

Purposes of Committal hearings (x5)

A
  • Determine whether there is evidence of sufficient weight to support a conviction (saves the court time/money/stress for accused etc)
  • determine how the accused plans to plead
  • determine if the charge can be determined summarily
  • ensuring a fair trial
  • allow the accused to be aware of the case against them (and potentially launch a defence)
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32
Q

Committal Proceeding - hearings can also contain (x3)

A
  • accused applying for bail
  • accused asking for permission to x-examine the prosecutions witness
  • hearing what the accused will plead
33
Q

Sentence indications - outcome of trial

A

after the SI has been given, if the accused pleads
Not guilty:
- SI cannot be used as an indicitation of guilt
- a new judge must be used for the trial
- the sentencing judge is not bound by the SI

Guilty:
- the court cannot impose a more severe sanction than given

34
Q

Sentence indications - purpose (x2)

A
  • put the accused in a better position to make the decision to plead guilty
  • reduce the number of cases where the accused pleads guilty late in proceedings
35
Q

Sentence Indications - appropriateness (x2 approp, x1 not approp)

A

appropriate when:
- the accused has applied
- the prosecution consents

not appropriate when:
- the court does not have sufficient information about the impact on the victim

36
Q

Plea Negotiations

A

discussions between the crown and the accused.

the accused may agree to plead guilty in exchange for:
- withdrawal of some charges
- reduction in the severity of the charge (murder to manslaughter)

37
Q

Plea Negotiations - purposes/benifits (x3)

A
  • speed up proceedings
  • avoid the stress and trauma associated with a trial
  • secure a conviction in cases where witnesses may be reluctant to give evidence
38
Q

Plea Negotiations - appropriate when (x3)

A
  • accused is willing to plead guilty
  • prosecution believes that some evidence/witnesses may be inadmissible or its accuracy may be questioned
  • obtaining information that will provide closure to a victims family (location of a body)
39
Q

Plea negotiations - not appropriate when (x3)

A
  • the accused is not willing to plead guilty
  • the alleged offending is serious enough that a conviction for lesser charges would not be in the publics interest
  • the victim opposes such an agreement (however - its up to the prosecution to make the final decision)
40
Q

Sentence indications

A

Statement by the court that states whether a guilty plea will or will not result in an immediate prison term

Conducted before a trial starts, after the indictment has been filed.

41
Q

Sentence indications - multiple indications

A

multiple SI can be given if:
- change in circumstances
- these changes are likely to affect the previous SI

42
Q

Court Hierarchy

A

refers to the arrangement of courts from the least formal and superior to the most formal and the most superior

43
Q

Appeals

A

When a matter is heard for a second (or more) times.

Party seeking the appeal needs to prove they have the grounds to appeal. Appeals are not automatic rights

Without a court hierarchy, appeals would not be possible

44
Q

Appeals - Reasons (x3)

A
  • Sentence - appealing the sentence
  • Law - appeal the application of the law
  • Conviction - appealing the guilty verdict on a matter of fact
45
Q

Specialization

A

refers to the court staff and judges developing expertise in particular criminal disputes - as a result

46
Q

Responsibilities of the Parties

A

to present their case to the court

47
Q

Responsibilities of the parties - examples (x3 prosecution, x4 accused)

A

Prosecution:
- call all relevant witnesses (cannot pick and choose witnesses)
- communicate with victims
- if the accused is found guilty, make appropriate submissions on the appropriate sanctions

Accused:
- enter a plea of guilty/not guilty
- decide what witnesses to call
- decide how to defend themselves
- if they are found guilty, give the court a plea of mitigation

48
Q

Titles of Judges

A

Magistrates Court -> Magistrate
County Court -> Judge
Supreme & High Court -> Justice

49
Q

Responsibilities of Legal Practitioners - examples x3

A
  • Opening and closing address
  • presenting case to judge and jury
  • if the accused person is convicted, make submissions about the appropriate sanction
50
Q

Responsibilities of the Jury

A

to deliver verdicts in the county/supreme courts

51
Q

Responsibilities of the Jury - Examples (x5)

A
  • to select a foreperson
  • to be objective
  • listen to the proceedings
  • determine the verdict
  • keep statements made in the jury room confidential
52
Q

Responsibilities of Legal Practitioners

A

To represent the parties - they have legal training

Solicitor - prepares legal documentation
Barrister - represents the party in court

53
Q

Responsibilities of the Judge

A

Appointed to conduct hearing/trials and resolve disputes

54
Q

Responsibilities of the Judge - examples (x4)

A
  • apply the rules of evidence
  • adjudicate without bias or preconcived notions
  • give rulings on points of law
  • determining the sentence
55
Q

Jury makeup

A

12 people, representing a cross-section of society, randomly selected from the electoral role

56
Q

Purposes of Sanctions x5

A

Rehabilitation
Punishment
Deterrence
Protection
Denunciation

57
Q

Rehabilitation (+ impact + arguments against)

A

a sentence that attempts to break the cycle of criminal behaviour.

Impact on sentencing: courts attempt to address the underlying factors (drug addictions, mental illness) when sentencing

Some criminologists believe that individuals ‘criminality’ is instinctive and cannot be shaped by society. Also very expensive

58
Q

Punishment (+ impact + reasons)

A

Designed to ensure that the offender pays for the impact their crime had on victims and society

Impact: Severe Sanction

Why Punish:
- adequate retribution for victims
- ensure that victims/families do not feel they need to get revenge themselves

59
Q

Denunciation (+ impact)

A

publicly condemn the offenders criminal behaviour.

Highlight the extent to which the offender has violated the moral and ethical standards of society.

Impact:
- more severe sanction
- comments will typically explain the extent of the courts outage and condemnation

60
Q

Protection (+ impact + reasons)

A

Ensures that offenders who pose a significant risk to the community are removed from the community.

Why Protect:
- ‘greatest amount of good for the greatest number of people’
- depriving a dangerous offender for the protection of the wider community

Impact:
- imprisonment over a CCO or fine
- longer period of imprisonment

61
Q

Rehabilitation (+ impact)

A

a sentence that attempts to break the cycle of criminal behaviour.

Impact on sentencing: courts attempt to address the underlying factors (drug addictions, mental illness) when sentencing

62
Q

Fines (+ how they work)

A

Monetary payments that the court will order the offender to make as a sanction for a criminal offence.

Legislation states for each offence a maximum penalty that can be imposed.

Fines are listed in Penalty Units.

Majority of cases in the Magistrates are resolved using a fine

63
Q

Fines - Factors that set the size of the fine (x3)

A
  • Purpose the court is wishing to achieve
  • Aggravating or Mitigating Factors
  • Offenders ability to pay
64
Q

Fines - Purposes of Sanctions

A

Punishment ACHIEVED:
- Offender is unable to buy goods and services they would have bought, QoL decreases
- Fines are usually paid in the short term -> consequence is felt quickly
- Court can set the fine based on the ability of the offender to pay

Punishment NOT ACHIEVED:
- legislated maximum fine may not be high enough to punish wealthy offenders

Deterrence ACHIEVED:
- economic loss discourages the offender from reoffending (specific)
- economic loss discourages others from offending (general)

Deterrence NOT ACHIEVED:
- Fines for summary offences are not often published, limiting the ability of general deterrence to be achieved
- legislated maximum may not be high enough to discourage wealth offenders

Protection NOT ACHIEVED

Rehabilitation NOT ACHIEVED

Denunciation ACHIEVED:
- if the court imposes a large fine, the disapproval can be communicated

Denunciation NOT ACHIEVED:
- maximum fine may not be high enough to send a message
- court will not impose a fine so high the offender cannot pay
- ability of denunciation may be limited

65
Q

CCO (+ components)

A

Community Corrections Order - sanctions the offender serves whilst in the community.

Range of time: run for a period of time, as set by the judge, limited to 5 years

Conditions: conditions will be attached to address the underlying factors (drug rehab, anger management, staying away from a particular location)

66
Q

CCO - Purposes of Sanctions

A

Punishment ACHIEVED:
- Restricts offenders movement
- Community Service

Punishment NOT ACHIEVED:
- CCO might not punish the offender sufficiently - victims may feel that justice has not been done

Deterrence ACHIEVED:
- inconvenience of a CCO could discourage the offender from reoffending
- specific deterrence can be achieved through flexible conditions for the offender

Deterrence NOT ACHIEVED:
- not a serious sanction

Protection ACHIEVED:
- offenders can be restricted from locations
- conditions can include bans of alcohol and curfews

Protection NOT ACHIEVED:
- offender remains in community and can ignore the CCO

Rehabilitation ACHIEVED:
- addresses underlying issues

Denunciation NOT ACHIEVED

67
Q

Imprisonment (+ types of sentences)

A

when an offender is held in custody for a period of time.

Types:
- Concurrent - multiple sentences, served at the same time
- Cumulative - multiple sentences, one after another
- Aggregate - single sentence imposed for multiple offences
- Life sentences - imprisonment that lasts the rest of natural life
- indefinite sentences - imposed until the court believes they are not a danger to society

68
Q

Imprisonment - Purposes of Sanctions

A

Punishment Achieved:
- offender is placed in harsh environment
- loses contact with friends/family/job

Deterrence Achieved:
- offenders should be discouraged from committing the same crime

Deterrence Not Achieved:
- 40% of people reoffend after being released
- many crimes are committed in the heat of the moment - people dont consider possible prison sentences

Protection Achieved:
- offender removed from society

Protection Not achieved:
- offenders can reoffend after being released

Denunciation Achieved:
- Harshest sentence

Rehabilitation Achieved:
- some prisons can address underlying issues

Rehabilitation Not Achieved:
- need for these services exceeds services provided

69
Q

Impact of Guilty Plea

A
  • Mitigating Factor
  • No need for trial
  • no need for witnesses to give evidence
  • If SI given - max sentence
70
Q

Factors that affect the Principles of Justice (Criminal) x3

A

Costs
Time
Cultural Differences

71
Q

Costs as a factor that affects the principles of justice (sources x3, alleviations x3)

A

Accused persons often face high costs in defending a criminal charge

Sources:
- Legal Representation Fees
- Witness Fees
- Appealing to a higher court

Alleviations:
- VLA
- CLC
- Committal hearings - reduce the cost of a trial

72
Q

Time as a factor that affects the principles of justice (undesirable because x5, sources x4, however x3)

A

Undesirable:
- For victims of crimes
- those giving evidence
- community remains at risk if the accused individual remains in the community
- awaiting trial with an outcome unresolved is stressful for an accused person
- criminal trials often rely on oral evidence -> memories fade over time, accuracy can decrease

Sources of delays:
- court backlogs
- time taken to appeal judgements and sentences
- hung juries or mistrials
- empanelling juries is time consuming

however:
- expedited trials
- fewer jury trials
- committal hearings - reduce the time taken

73
Q

Cultural Differences as a factor that affects the principles of justice ()

A

different groups may have issues engaging with the legal system

74
Q

Factors considered in sentencing

A

Aggravating Factors
Mitigating Factors
Guilty Pleas
Victim Impact Statements

75
Q

Aggravating Factors (x4 examples)

A

Factors that render the offending more serious

These factors entice the courts to impose a more severe sanction

Factors include:
- Premeditated Crime
- Crime motivated by hatred for a particular group
- The offender has prior convictions for similar offences
- victim was vulnerable

76
Q

Mitigating Factors (x5 examples)

A

Factors that make the offender less culpable

these factors entice the court to impose a less severe sanction

Factors include:
- genuine remorse
- crime was provoked
- the age of the offender
- limited criminal history
- traumatic personal history

77
Q

Guilty Pleas

A

A full admission by an accused person of an offence that theyve been charged with.

Removes the need for a trial

Court regards it as a mitigating factor (community is saved the time/cost/stress of a trial)

78
Q

Victim Impact Statemnet

A

A written or verbal statement given to the court about the impact of an offence.
Can include physical, emotional, mental and/or financial impacts as a result of the offence.

The purpose of a VIS is to help inform the court of the severity of the offence.
Can act as a mitigating/aggravating factor

Legal Studies Unit 3/4 (7 decks)

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