U3, AOS1A

Question 1

Common law

Answer 1

• Law made by judges through decisions made in cases (i.e. precedents).
• Also known as case law or judge-made law

Question 2

Statute law

Answer 2

• Laws made by parliament.
• Also known as legislation or Acts of Parliament

Question 3

Bail

Answer 3

• The release of an accused person from custody on the condition that they will attend a court hearing to answer the charges.

Question 4

Parole

Answer 4

• The supervised and conditional release of a prisoner after the minimum period of imprisonment has been served.

Question 5

Accused

Answer 5

• A person charged with a criminal offence.

Question 6

Sanction

Answer 6

• A penalty imposed by a court on a person guilty of a criminal offence.

Question 7

Prosecutor

Answer 7

• The Crown in its role of bringing a criminal case to court.

Question 8

Commonwealth offences

Answer 8

• Crimes that break a law passed by the Commonwealth Parliament.
• Examples include: engaging in a terrorist act, people smuggling, espionage crimes (i.e. communicating information concerning national security to another
  foreign country).

Question 9

Summary offences

Answer 9

• Minor offences generally heard in the Magistrates’ Court before a magistrate.
• Does not involve a jury
• Name of final hearing is a hearing
• Examples include: disorderly conduct, DUI, vandalism

Question 10

Indictable offences

Including name of final hearing

Answer 10

• A serious offence generally heard before a judge and a jury in the County Court or Supreme Court of Victoria.
• Name of final hearing is a trial
• Examples include: rape, murder, drug offences

NOTE: Theft is an indictable offence that is typically heard summarily

Question 11

Commital proceedings

Answer 11

• Occurs when an accused person is charged with an indictable offence and pleads not guilty.
  
  • If pleading guilty, trial is skipped and sentencing happens immediately.
• Takes place in the Magistrates’ Court and involve several stages before reaching the final part, the committal hearing
  
  • The committal hearing is where the Magistrate will decide whether there is sufficient evidence to support a conviction at trial
  • If there IS enough evidence, the accused is committed to stand trial and the case is transferred to a higher court
  • If there IS NOT enough evidence, the accused is discharged and allowed to go free
• Saves resources, money and time

Question 12

Indictable offences heard summarily

Answer 12

• Serious offences that can be heard in the Magistrates’ Court as if they were minor offences
• Requirements:
  
  • The accused agrees to it
  • The court agrees it is appropriate
  • The maximum sentence for the crime is less than 10 years
• Quicker than a trial in the County Court and Supreme Court
• Costs less for the State
• Sentence that can be handed down is lesser

E.g. stealing $90,000

Question 13

Key principles of Victorian Criminal Justice Sytem

Answer 13

• The burden of proof
• The standard of proof
• The presumption of innocence

Question 14

The burden of proof

Answer 14

• The obiligation (i.e. onus; responsibility) of a party to prove a case. Typically rests on the prosecution.
• In a few instances, the burden of proof can be reversed.
  
  • For example, if the accused is pleading self-defence or mental impairment.
  • Onus will be on the accused person to prove that they were suffering an impairment, or that they were acting in response to another person’s action.

Question 15

The standard of proof

Answer 15

• The degree or extent to which a case must be proved in court
• In criminal law, it is beyond reasonable doubt
  
  • This means that once the evidence has been presented, there must be no doubt in a juror’s mind when they decide on a verdict.

Question 16

The presumption of innocence and how it is upheld

Answer 16

• The right of an accused person to be presumed not guilty unless proven otherwise.
• • Upholding the presumption of innocence:
    
    • Imposing a high standard of proof/evidence on the prosecution (rather than the accused)
    • Bail system allows the accused their liberty prior to the court date
    • The right to silence during questioning and trial, the right to appeal
    • Not allowing a person’s prior convictions to be revealed until their sentencing (after they have been found guilty).

Question 17

Rights of an accused: to be tried without unreasonable delay

Answer 17

• Accused are entitled to have their trial heard within a timely manner and any delays that occur should be for purposes deemed reasonable.
  
  • Judge contracts Covid-19.
  • Accused pleads insanity: requires time for mental evaluation etc.
  • Multiple crime scenes and more evidence to collect.
  • Mistrial: jury talks to people outside of the case.
• ‘Unreasonable delay’ is undefined → applied on a case by case basis.
• Sourced from the Human Rights Charter

Question 18

Rights of an accused: to silence

Answer 18

• Comprises of different types of protections:
  
  • The right to refuse to answer any questions & not give any information during the investigation of the crime.
  • Not being forced to give evidence in a criminal trial, answer any questions, file any defence, or call witnesses.
• The right to silence is protected by common law:
  
  • No adverse inferences can be drawn from the fact that a person remains silent.
  • An accused person has the ability to later bring up defences in a trial that was not raised earlier.
  • The accused person can choose to answer some questions and not others.

NOTE: Although these factors are protected, it is often hard to convince a jury of their own ideas → silence is associated with guilt.

Question 19

Rights of an accused: to trial by jury

Answer 19

• A trial by jury is where a person’s peers within the community decide the outcome of the case – i.e. in a criminal case, whether or not the accused is guilty.
• Protected by statute law & the Australian Constitution
• Section 80 of the Australian Constitution
  
  • Any person charged with a Commonwealth indictable offence is entitled to a trial by jury.
• Juries Act 2000 (Vic)
  
  • For Victorian indictable offences.
  • Requires that there be a jury of 12 in a criminal trial.

Question 20

Rights of a victim: to give evidence using alternative arrangements

Answer 20

• Arrangements given to victim to make them feel more comfortable when giving evidence.
• Such arrangements can be made for victims who have experienced:
  
  • A sexual offence
  • A family violence offence
  • An offence for obscene or threatening language in public
  • An offence for sexual exposure in public
• Examples of alternative arrangements for a victim:
  
  • The victim may give evidence from a place other than the courtroom by means of a TV screen.
  • Retractable screens may be placed between the victim and accused → out of field of vision.
  • A support person (i.e. trusted adult, trusted friend) may accompany the victim when giving evidence.
  • Legal practitioners may be required to stay seated when questioning the witness to decrease feelings of intimidation.

Question 21

Jury

Answer 21

• An independent group of people chosen at random from the Victorian Electoral Roll to decide on the evidence in a legal case and reach a verdict → foreperson will announce whether the defendant is guilty or not guilty.

Question 22

Victim

Answer 22

• A person directly affected by crime.
• Essential for victims to testify in court to enhance the prosecution’s case.
  
  • Emotional appeal to jury

Question 23

Human Rights Charter

Answer 23

• The Charter of Human RIghts and Responsibilities Act 2006 (Vic).
• Main purpose is to protect and promote human rights.
• Is designed to ensure that any statute passed by parliament is compatible with the HRC

Question 24

Rights of a victim: to be informed about proceedings

Answer 24

• Victims are entitled to be informed about any information regarding the proceedings at regular intervals.
  
  • Unless the victim specifically requests to receive no information at all, or if the information will hinder the investigation if disclosed.
• Examples of information:
  
  • Details of the offences charged against the accused.
  • How the victim can found out about the date, time and location of the proceedings.
  • The outcome of the criminal proceedings.
  • Any appeal requests by the accused.
• Protected by Victims’ Charter

Question 25

Rights of a victim: to be informed of the likely release date of the accused

Answer 25

• Once the accused has been charged and sentence in a court of law, the victim is entitled to find out about any information regarding their release date from imprisonment, as well as any parole opportunities when they are applied for (Section 17 of Victims’ Charter).
• Victim must be on the Victims’ Register.
• Must be a victim of a criminal act of violence.
  
  • Rape and other sexual offences
  • Aggravated burglary
  • Stalking
  • Culpable driving causing death (DUI; intentional)
  • Dangerous driving causing death or injury (psychotic episode that leads to dangerous driving; unintentional)
  • Failing to stop after a motor vehicle accident causing death or serious injury (hit and run)
• Victim is to be notified at least 14 days prior to release date.

Question 26

Victims’ Charter

Answer 26

• The Victims’ Charter Act 2006 (Vic) recognises the impact of crime on victims and provides guidelines for the provision of information to victims.

Question 27

Victims register

Answer 27

• A 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 imprisoned.
• Examples of violent crimes are: rape, aggravated buglary, kidnapping, stalking, culpable driving causing death, dangerous driving causing death or injury, failing to stop a motor vehicle causing death or serious injury