Chapter 2: Rights and Justice Flashcards
(135 cards)
1
Q
What are laws?
A
Legal rules made by a legal authority that are enforceable by the police and other agencies.
2
Q
What is parliament?
A
A formal assembly of representatives of the people that is elected by the people and gathers together to make laws.
3
Q
What is the main purpose of laws?
A
To achieve social cohesion
4
Q
What is social cohesion?
A
Social cohesion is the willingness of members of a society to cooperate with each other in order to survive and prosper. It involves living together in peace and harmony, as well as respecting everybody’s individual rights.
5
Q
When was the Australian legal system formed?
A
1901, with passing of the Australian Constitution
6
Q
What is the Australian Constitution?
A
A set of rules and principles that guide the way Australia is governed. Formally recognised as Commonwealth of Australia Constitution Act 1900 (UK).
7
Q
When was the Australian Constitution passed?
A
January 1, 1901
8
Q
What existed before the passing of the Australian Constitution?
A
Commonwealth of Australia did not exist. Instead, 6 separate British colonies, each with its own parliament which made laws for its own residents.
9
Q
Why was the Commonwealth of Australia formed?
A
- strengthen Australia’s defence
- make consistent laws on issues of immigration and trade issues
10
Q
What is the Federation of Australia?
A
The union of sovereign states that gave up some of their powers to a central authority to form Australia.
11
Q
What type of political system does Australia have?
A
Constitutional monarchy
12
Q
What is a constitutional monarchy?
A
A system of government in which monarch is the head of state and a parliament makes the laws under the terms of the constitution.
13
Q
Australia is also described as a democracy. What is a democracy?
A
A system of government in which members of parliament are voted into office by the people and represent the wishes of the people.
14
Q
What is a political party?
A
An organisation representing a group of people with shared values and ideas, and which aims to have its members elected to parliament.
15
Q
Parliament is the law-making institution of government. What is government?
A
The ruling authority with power to govern, formed by the political party or coalition holding the majority in the lower house in parliament.
16
Q
How many parliaments are there in Australia? Identify them.
A
9 parliaments
- 1 Commonwealth Parliament
- 6 state parliaments
- 2 territory parliaments
17
Q
What is the Westminster system?
A
A parliamentary system of government that was developed in Britain and upon which Australia’s parliamentary system is modelled?
18
Q
What is meant by bicameral parliament?
A
A parliament with two houses (also called chambers). In the Australian Parliament, the two houses are the Senate (upper house) and the House of Representatives (lower house). In the Victorian Parliament the two houses are the Legislative Council (upper house) and the Legislative Assembly (lower house).
19
Q
Are all Australian parliaments bicameral?
A
No.
Queensland, ACT and NT parliaments are unicameral.
20
Q
Who is the opposition? What is their role?
A
The political party holding the second largest number of seats in the lower house. The opposition questions the government about policy matters and is responsible for holding them to account.
21
Q
What is the role of parliament?
A
To introduce, scrutinise, debate and pass bills to make laws on behalf of the people they represent.
22
Q
How many seats in the HOR?
A
151
23
Q
How many seats in the Senate?
A
76
24
Q
How many seats in the Legislative Assembly?
A
88
25
How many seats in the Legislative Council?
40
26
What is statute?
A law made by parliament; a bill which has passed through parliament and has received royal assent a.k.a Act of Parliament.
27
What is a bill?
A proposal to a implement a new law or change an existing law.
28
What is royal assent?
The formal signing and approval of a bill by the governor-general (at the Commonwealth level) and the governor (at the state level), after which a bill becomes an Act of Parliament.
29
What is statute law?
Law that is made by parliament through passing of legislation.
30
How can a statute be identified?
Have the word 'Act' and will show when the act was made and which parliament made it e.g. Marriage Act 1961 (Cth) is a statute passed by the Commonwealth Parliament in 1961.
31
What is secondary legislation?
Rules and regulations made by secondary authorities (e.g. local councils) that are delegate the power to do so by the parliament. A.k.a delegated legislation.
32
What is common law?
Law made by judges through decisions made in cases a.k.a case law or judge-made law.
33
What is criminal law?
An area of law that protects the community by establishing and defining what crimes are and setting down sanctions for people who commit them.
34
What is a crime?
An act or omission that
- breaks an existing law
- is harmful to an individual or to society
- is punishable by law
35
What is a sanction?
A penalty imposed by a court on a person guilty of a criminal offence.
36
What is civil law?
An area of law that establishes the rights and responsibilities of individuals, groups and organisations, and regulates private disputes when these rights are infringed, seeking to remedy loss which has occurred.
37
What is a civil dispute?
A disagreement between two or more individuals/groups in which one of them makes a legal claim against the other.
38
What is the purpose of civil action?
To seek a remedy to return that person to the position they were in before their rights were infringed.
39
Can there be overlap between civil and criminal law?
Yes. The same behaviour can sometimes result in criminal prosecution and give rise to civil action. In such cases, the civil and criminal case are heard separately, and the outcome of one does not affect the other.
40
Is it possible for the accused to be found not guilty in a criminal case, but found liable in a civil case relating to the same behaviour? Why/Why not?
Yes. Their guilt may not be determined beyond reasonable doubt, but liability could be determined on the balance of probabilities.
41
What is the rule of law?
The legal principle that everyone is bound to the same laws and must obey them. It also prescribes that laws show be fair and clear so people are willing and able to obey them.
42
Identify principles that are designed to uphold the rule of law
law must be clear, understood, known and enforceable
the presumption of innocence
hearing and trials must be held by impartial adjudicators
principles of justice
43
What is the criminal justice system?
A set of processes and institutions used to investigate and determine criminal cases.
44
Identify 2 key purposes of the criminal justice system
decide whether an accused is guilty of an offence
impose a sanction in cases when an accused has been found or pleaded guilty
45
True or False.
| There is a single unified criminal justice system in Australia.
False. Each state has it own criminal justice system.
46
Why does each state have its own criminal justice system?
Under the Australian Constitution, the Commonwealth Parliament does not have the power to make laws about crime in general. Thus, each state/territory has its own laws establishing what is considered crime (1) the ways of determining a criminal case (2) and the maximum penalty for specific crimes (3).
47
In what case can the Commonwealth Parliament make laws about crime?
If it relates to its own constitutional powers e.g. avoiding custom duties, because customs is a Commonwealth power. These are known as Commonwealth offences.
48
What are Commonwealth offences?
Crimes that break a law passed by the Commonwealth Parliament e.g. terrorism
49
What are the parties involved in a criminal case?
```
The state (represented by prosecution)
The accused
```
50
What is the prosecutor?
The Crown in its role of bringing a criminal case to court.
51
Who is an accused?
Person or organisation alleged to have committed a crime.
52
What is the Office of Public Prosecutions (OPP)
The Victorian public prosecutions office that prepares and conducts criminal proceedings on behalf of the Director of Public Prosecutions.
53
What is the Director of Public Prosecutions (DPP)?
The independent officer responsible for commencing, preparing and conducting prosecutions of indictable offences on behalf of the crown.
54
Can Victoria Police and other organisations like local councils prosecute a case in the Magistrates' Court?
In less serious cases, yes.
55
Can there be multiple accused persons in a criminal case?
Yes.
56
What is fairness?
A principle of justice which prescribes that legal processes should be impartial, and without fear of favour.
Both parties in a case should have the opportunity to know the facts of their case, present their case and rebut that of the opposition.
It is not necessary that everyone be treated the same, but difference in treatment should be due to relevant laws or circumstances of the case, not discrimination.
57
How is fairness upheld?
- avoiding delays
- legal representation
- opportunity to present case, know evidence that will be presented by opposing party
- opportunity to appeal
- understand legal processes and case
- impartial judge/adjudicator
- burden of proof
- standard of proof
- presumption of innocence
- randomly-selected jury
58
What is equality?
A principle of justice which prescribes that all people, regardless of their characteristics, should be equal before the law and receive the same opportunities to present their case, without advantage or disadvantage
Also, laws should not be discriminatory and legal processes should and unprejudiced, as well as the parties who administer these processes.
59
How is equality upheld?
- impartial judge and jury
- non-discriminatory legal processes and laws
- legal representation
- rights and opportunities (e.g. the right to appeal) afforded to parties
60
How is access upheld?
- availability of means to finalise criminal cases e.g. plea negotiations and sentence indications
- legal representation
- being tried without unreasonable cost or delay
- access to inrormation about laws and legal rights
- open hearings, judgements and reasons for decisions made publicqlly available
- victim impact statement
61
Identify the four key concepts in the Victorian criminal justice system
- distinction between summary and indictable offences
- burden of proof
- standard of proof
- presumption of innocence
62
How can crimes be classified according to the seriousness of the offence?
- summary offences
| - indictable offences
63
What are summary offences?
Minor criminal offences generally heard in the Magistrates’ Court by a magistrate. Sanctions imposed are less severe (e.g. small fines, short periods of imprisonment)
E.g. disorderly conduct, common assault, tattooing juveniles, food or drink spiking.
64
What are indictable offences?
Serious criminal offences heard in the County or Supreme Court by a judge (and jury if the accused pleads ‘not guilty’). Sanctions imposed are more severe than those imposed for summary offences (e.g. larger fines, extended periods of imprisonment).
E.g. sexual assault offences, murder, manslaughter, some cases of theft.
65
What is an indictable offence heard and determined summarily?
A serious offence that can be heard and determined as a summary offence in the Magistrates’ Court if the court and the accused agree.
66
When may an indictable offence be tried summarily?
- offence is punishable by a term not exceeding 10 years imprisonment or a fine larger than
1200 penalty units ($200,000)
- court deems it appropriate
- the accused agrees
67
Why may an accused choose to have their charges heard summarily?
- summary hearing is quicker and cheaper than trial
- may receive lesser punishment as maximum penalty that can be handed down is less than if it were heard as an indictable offence (maximum penalty is capped at no more than 2 years for a single offence and 5 years for multiple offences)
68
Provide examples of indictable offences heard and determined summarily
- Theft, robbery and burglary (if value of property stolen does not exceed $100,000)
- Recklessly causing serious injury
69
Distinguish between indictable and summary offences
Summary vs. Indictable
Nature: Minor/Serious
Court: Magistrates'/County or Supreme
Adjudicator: Magistrate/Judge
Entitlement to jury: No/Yes (if accused pleads guilty)
Name of final hearing: Hearing/Trial
Main statute containing offences: Summary Offences Act/Crimes Act
How it can be heard: Only heard summarily/Some can be heard summarily
70
What is the burden of proof?
The obligation of a party to prove a case.
| Usually rests with party initiating action: plaintiff in civil disputes and prosecution in criminal cases
71
When may the burden of proof be reversed?
- cases where the accused is pleading a certain defence (e.g. they had a mental impairment or acted in self-defence at time of committing the offence)
- cases where drugs are found on the accused's property, the accuses is presumed guilty of possession unless THEY prove otherwise
72
What is the standard of proof?
The degree or extent to which a case must be proved in court
73
What is the standard of proof in criminal cases?
Beyond reasonable doubt
74
Define beyond reasonable doubt
The standard of proof in criminal cases which requires the prosecution to prove there is no sensible/logical doubt that the accused committed the offence.
75
If the burden of proof is reversed and the accused is relying on a certain defence, what is the standard of proof?
Balance of Probabilities
76
Define Balance of Probabilities
The standard of proof in civil disputes. Requires plaintiff to establish that it is more probable than not that their version of facts is correct.
77
What is the presumption of innocence?
The universal right of someone accused of a crime to be presumed not guilty unless proven otherwise.
78
How is the presumption of innocence upheld?
- appeal
- burden of proof (on prosecution)
- bail
- police must have reason to believe a person has committed a crime before arresting
- prior convictions not told until sentencing
- legal representation
- right to silence
- standard of proof (beyond reasonable doubt)
79
What is the mnemonic to recall ways in which the P.O.I is protected?
A Big Brown Puffy Pig Likes Some Slop
80
How does standard of proof uphold the presumption of innocence?
Accused will be presumed not guilty of offence unless sufficient evidence is presented to prove, beyond any logical/sensible doubt, that they are guilty.
81
How does the burden of proof protect the presumption of innocence?
Burden of proof on prosecution.
Thus, accused - presumed innocent - not required to prove their innocence, rather, prosecution must present evidence to the court to prove their guilt.
82
How does the right to silence uphold the presumption of innocence?
Means that accused does not have to answer any questions or provide any evidence in court to establish their innocence, as they are presumed innocent and their words may be used as evidence against them.
Also, their silence, cannot be interpreted as a sign of guilt.
83
How does the right to bail protect the presumption of innocence?
After being arrested, accused can apply for bail and be allowed back into society, ensuring that they are being treated as not guilty before proven otherwise in court, as they are not denied their freedom and held in custody.
84
How does the right to legal representation protect the presumption of innocence?
Means that the accused has a fair chance and is not disadvantaged in trial, and is able to defend accusations made by and evidence presented by the prosecution.
85
How does the right to appeal uphold the presumption of innocence?
The possibility of a wrongful conviction is recognised and the accused is afforded the right to appeal it.
86
How does not disclosing prior convictions until sentencing uphold the presumption of innocence?
This avoids the jury leaping to the conclusion that the accused is guilty because of their past record as opposed to the facts presented in the case.
87
What is the Charter of Human Rights and Responsibilities Act 2006 (Human Rights Charter)?
Victorian statue which seeks to protect and promote human rights.
88
Identify the three main rights available to an accused
- The right to be tried without unreasonable delay
- The right to a fair hearing
- The right to a trial by jury
89
Explain the right to be tried without unreasonable delay
The accused is entitled to have their charges heard in a timely manner, and that delays should only occur if considered reasonable. This is because under the Human Rights Charter, people have a basic right to liberty and security, and accused persons are presumed innocent until proven guilty so they should not be held for an unreasonable time while they await trial.
Protected by Human Rights Charter.
90
How is the reasonableness of any delay determined?
Depends on factors like the complexity of the case, the length of the delay, the reasons for the delay, availability of resources and case backlogs in court.
91
Explain the right to a fair hearing
The accused is entitled to have the charge decided by a competent, independent and impartial court (to ensure that the process is unbiased and objective) after a fair and public hearing (to allow for public and media scrutiny).
Protected by Human Rights Charter.
92
Can the court exclude anyone from the 'public'?
Yes. In some cases, members of media or general public can be excluded from all or part of the hearing because a their presence may distress/intimidate a witness while giving evidence, may detract attention away from the proceedings etc. compromising the validity of the hearing.
93
How can the right to a fair trial be upheld?
- legal representation
- directions to the jury to base their verdict only on the facts of the case, not on any bias or preconceived ideas of the accused's guilt
- public hearings, to ensure those administering justice do so in a way that the public can see is fair (providing public scrutiny of the work of the courts, prosecutors and the police)
- judges (and juries) must be independent of the parties, witnesses and victims, to ensure decisions are based on the facts and the law, not prejudice or bias.
- right to silence
94
Explain the right to trial by jury
Accused's entitlement to be tried by their randomly selected, unbiased peers within the community who determine guilt. Thus, providing the opportunity for community participation in the legal process, and for the law to be applied according to community standards.
Protected by Australian Constitution.
95
In what ways in the right to trial by jury limited?
- There is no right to a jury trial for summary offences; the majority of offences committed are summary offences
- No need for jury if accused pleads guilty
96
Who is a victim?
A person who has suffered directly or indirectly as a result of a crime.
97
What is the Victims' Charter Act 2006 (victim's charter)?
Victorian statute which recognises the impact of crime on victims and provides guidelines for the provision of information to victims.
98
Is someone who has suffered injury as a direct result of a criminal offence a victim?
Yes. Primary Victim.
99
Is a family person of someone who has died as a direct result of a criminal offence a victim?
Yes.
100
Is a family member of a person who is under 18 years of age or is incapable of managing his or her own affairs because of mental impairment and has suffered injury as a direct result of a criminal offence a victim?
Yes.
101
Is a child under the age of 16 who has been groomed for sexual conduct, as well as that child's family a victim?
Yes.
102
Can victims take civil action if the principles (rights) established by the Victims' Charter are breached?
No.
103
What are the three main rights available to victims?
- Give evidence as a vulnerable witness
- Be informed about the proceeding
- Be informed of the likely release date of the accused
104
What is meant by a "vulnerable" witness?
A person who is required to give evidence in a criminal case and is considered to be at risk. This might be a child, a person with a cognitive impairment, or the victim of a sexual offence or family violence.
105
Explain the right to give evidence as a vulnerable witness
Victims considered 'vulnerable' who are witnesses in criminal cases are entitled to alternative arrangements deemed allowable and appropriate by the court to accomodate them in light of their vulnerability.
This avoids making victims uncomfortable/distressed/embarrassed/intimidated and jeopardising evidence or suffering secondary trauma as a result of describing what happened.
106
What are the four main protections in place for vulnerable witnesses?
- alternate arrangements (put in place to protect the witness and their testimony)
- classification as a protected witness (when a criminal case involves a sexual offence or family violence offence)
- special arrangements for children or the mentally impaired (to reduce trauma in victims)
- protection from improper questions (which are confusing, harassing, intimidating, offensive or humiliating).
107
For what sorts of offences can alternative arrangements be made?
- sexual offence
- family violence offence
- obscene, indecent, threatening language or behaviour in public
- offence for sexual exposure in public place
108
What type of alternative arrangements can be made?
- give evidence via closed-circuit television as they may be intimidated by the atmosphere of a courtroom.
- give evidence behind a screen so they do not have to face the accused.
- a support person may be chosen by witness to be present while giving evidence
- only certain persons allowed in the courtroom
- legal practitioners may be required not to be formally dressed in robes, or may be required to be seated while asking the witness questions
109
Explain the protection of being classified as a protected witness.
A court can declare at ay time that a witness is a protected witness in criminal proceedings for a sexual or family violence offence.
If this happens, the protected witness must not be cross-examined by the accused, but by their legal representative.
If the accused is self-represented, the court must order Victoria Legal Aid (VLA) to provide legal representation for the accused for the purpose of cross examination.
110
Explain the protection for children and mentally impaired witnesses.
In criminal proceedings for sexual offence, an indictable offence involving assault, or injury or threat of injury to a person and offences involving minor assaults where those assaults relate to one of the above two offences, witnesses under 18 or with a cognitive impairment are allowed to give their examination-in-chief by way of audio or audio-visual recording.
111
What is an examination-in-chief?
The questioning of one's own witness in court to prove one's own case and disprove the opponent's case.
112
Explain the right to be informed about the proceedings.
Victims are entitled to certain information about the proceeding and about the criminal justice system.
113
What does a 'right to be informed' include?
- details of the offences charged against the person
- if no offence is charged, the reason why
- how the victim can found out the date, time and place of the hearing of the charges
- key developments in the case (e.g. bail granted)
- the outcome of the criminal proceeding, including any sentence imposed
- details of any appeal
114
Under what conditions is the right to be informed about the proceedings waived?
- if providing information may jeopardise the investigation
| - if the victim chooses not to receive the information
115
Explain the right to be informed of the likely release date of the accused
Victims of criminal acts of. violence are entitled to being included on the Victim's register and receiving certain information about an imprisoned offender, including their likely date of release and (if applicable) their release on parole.
116
What is the victim's register?
A government record of victims of particular crimes. Those placed on the Victim's Register will be notified about the length of the sentence imposed, if the offender escapes and the likely release date of the offender.
Victims can also to make a submission to a parole hearing relating to the offender.
117
Who are the four key personnel in a criminal trial?
The judge, jury, parties and legal practitioners.
118
Explain the role of the judge
The judge acts as an ‘umpire’ or ‘referee’ at trial and makes sure that the court procedures are carried out in accordance with the court’s rules and that each of the parties is treated fairly.
The judge must act impartially, not favour any side, and must have no connection with the prosecution or the accused.
119
Identify the responsibilities of the judge
Acts like a MAD HOG
Manage the trial
Attend to jury matters
Decide on admissibility of evidence
Hand down sentence
Other responsibilities
Give directions to jury and sum up the case
120
What does managing the trial entail?
- ensuring correct court procedure is followed and both parties get equal opportunity to present case
- giving directions and making orders during trial
- asking questions, clearing ambiguities, asking occasional questions etc.
121
What are directions?
Instructions given by the court to the parties about time limits and the way a proceeding is to be conducted.
122
What does deciding on the admissibility of evidence entail?
Judge permits and excludes evidence from trial according to rules defined by the Evidence Act 2003 (Vic) e.g. hearsay evidence generally not admissible, evidence must be relevant to issues in dispute etc.
123
What does attending to jury matters entail?
- provide the potential jurors with information about the trial and the accused to make sure any person can be excused from being a juror is something about the case affects their ability to act as juror
- at any time during trial, the judge may address the jury about relevant matters
- may discharge juror is they aren't impartial, are ill, cannot continue to act as a juror, or should not continue to act.
124
What does giving directions to the jury entail?
- May need to give directions to the jury to ensure a fair trial.
- Inform jury about the principles of law e.g. beyond reasonable doubt, presumption of innocence etc.
- Summarise case to jury; identify evidence, define terminology etc.
125
What does handing down a sentence entail?
If accused found guilty or if accused pleads guilty, parties make submissions about sentencing at a plea hearing. Judge must take these into consideration and according to The Sentencing Act, must appropriately sanction the accused.
126
What 'other responsibilities' must the judge fulfil?
- Order the VLA provide legal representation (if satisfied that fair trial cannot happen without legal rep and accused cannot afford it, can adjourn trial until it is provided)
- Be familiar with technology (e.g. closed-circuit television)
- Be courteous and not interfere (not insult or demean parties in trial)
- Assist self-represented party (assist to understand procedural matters or legal terminology to ensure fair trial by making sure accused is on equal footing with prosecution as much as possible)
128
Identify the responsibilities of the jury
```
LOUD
Listen to and remember evidence
Objective
Understand directions and summing up
Deliver verdict
```
129
What is a jury?
AnAn independent group of people chosen at random to decide on the evidence in a legal case and reach verdict.
130
Explain the role of a jury in criminal trials
The decider of facts
131
What does being objective entail for the jury?
- be unbiased and open-minded when assessing evidence
- set prejudices and preconceived ideas aside
- have no connection to parties
- decide verdict based on facts no bias
132
What does listening to and remembering evidence entail for the jury?
- concentrate and make sense of the complicated evidence
| - not undertake own investigations, conduct any research on case or make any enquiries about trial matters
133
What does understanding directions and summing up involve for the jury?
- listen to the directions and summing up given by the judge
| - ask for explanation about any legal point they do not understand
134
What does delivering a verdict entail for the jury?
- jury must take part in confidential deliberations freely and without any coercion
- make decisions on the facts of the case and determine guilt
- aim to reach a unanimous verdict
- majority verdict may be accepted but not for murder, treason or certain drug offences
(court may also accept guilty verdict for alternative offence)
135
What is a unanimous verdict?
A decision where all the jury members are in agreement and decide the same way
136
What is a majority verdict?
A decision where all but one of the jurors are in agreement. In a criminal trial, this means 11 out of 12 jurors agree.
