Chapter 4 - The principles of justice in a criminal case Flashcards
1
Q
access
A
one of the principles of justice; in VCE Legal Studies, access means that all people should be able to {engage} with the justice system and its processes on an {informed basis}
2
Q
accused
A
a person charged with a criminal offence
3
Q
appeal
A
an application to have a higher court review a ruling (decision)
4
Q
appellant
A
a person who appeals against a decision (i.e. a person who applies to have the ruling of a lower court reviewed or reversed by a higher court)
5
Q
appellate jurisdiction
A
the power of a court to hear a case on appeal
6
Q
apprehended bias
A
a situation in which a fair-minded lay observer might reasonably believe that the person hearing or deciding a case (e.g. a judge or magistrate) might not bring an impartial mind to the case
7
Q
barrister
A
an independent lawyer with specialist skills in dispute resolution and advocacy who is engaged on behalf of a party (usually by the solicitor). In Victoria the legal profession is divided into two branches: solicitor and barristers
8
Q
beyond reasonable doubt
A
the standard of proof in criminal cases. This requires the prosecution to prove there is no reasonable doubt that the accused committed the offence
9
Q
bias
A
a prejudice or lack of objectivity in relation to one person or group
10
Q
committal proceedings
A
the pre-trial hearings and processes held in the Magistrates’ Court for indictable offences
11
Q
community legal centre (CLC)
A
an independent community 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
12
Q
criminal justice system
A
a set of processes and institutions used to investigate and determine criminal cases
13
Q
discrimination
A
unfavourable treatment of a person based on a certain attribute (e.g. age, gender, disability, ethnicity, religion or gender identity). Discrimination can be direct or indirect
14
Q
disparity
A
a situation in which two or more things or people are not equal, and the inequality causes unfairness
15
Q
duty lawyer
A
a VLA lawyer who is at court (on duty, on a particular day) to help people who come to court for a hearing. - Can give information about what happens in court, offer legal advice or represent an accused in court on that day. They may also be able to arrange for an adjournment of the hearing so that a lawyer can run the case.
- The priority of duty lawyers is those who are in custody and First Nations peoples. They do not need to satisfy any tests to be eligible for a duty lawyer.
16
Q
Engagement
A
element of fairness - people need the means and ability to be able to use and participate in the system. This includes: * physical access * technological access * financial access * no unreasonable delays
17
Q
equality
A
on of the principles of justice; in VCE Legal Studies, equality means people should be treated in the same way, but if the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow all to engage with the justice system without disparity or disadvantage - The Human Rights Charter protects equality by stating that every person: * is equal before the law * is entitled to equal protection of the law without discrimination * has the right to equal and effective protection against discrimination
18
Q
evidence
A
information, documents and other materials used to prove the facts in a legal case
19
Q
fairness
A
one of the principles of justice; in VCE Legal Studies, fairness means all people can {participate} in the justice system and its processes should be {impartial} and {open} - designed to ensure that: *innocent people aren’t found guilty of a crime they did not commit * public confidence is maintained in our criminal justice system through features such as open and public hearings
20
Q
formal equality
A
all people are treated the same and given the same level of support regardless of their personal differences and characteristics (i.e. same treatment)
21
Q
generalist CLC
A
a community legal centre that provides a broad range of legal services to people in a particular geographical area of Victoria
22
Q
guilty plea
A
when an offender formally admits guilt, which is then considered by the court when sentencing
23
Q
hearsay evidence
A
evidence given by a person who did not personally witness the thing that is being stated to the court as true
24
Q
impartial processes
A
Central to the principle of fairness is that our courts and personnel are independent and impartial/do not show bias - case is decided on facts and law, not on prejudices - extends to the need to ensure there is no apprehended bias - extends beyond the courtroom
25
income test
the test applied by VLA to determine whether a duty lawyer can represent an accused. The test is satisfied when the accused can show they have limited income (e.g. their primary source of income is social welfare provided by the government) - can be met if the accused produces a current Centrelink benefit card, or pensioner concession card, OR if they sign a declaration that shows they have limited income
26
informed basis
element of fairness - people should be able to : * understand their legal rights and the processes involved in their case * obtain, or be provided with, enough information to make reasoned and sensible decisions - the following may help a person be more informed: * education * information * legal and support services * legal representation
27
jurisdiction
the lawful authority (or power) of a court, tribunal or other dispute resolution body to decide legal cases
28
jury directions
instructions given by a judge to a jury either during or at the end of a trial
29
Magna Carta
a 'peace treaty' made in England 1215 between the barons (noblemen who pledged their allegiance to the king) and the king
30
majority verdict
a decision where all but one of the members of the jury agree
31
means test
the test applied by VLA to determine whether an applicant qualifies for legal assistance or representation in court (beyond the services of the duty lawyer on the day). It takes into account the applicant's income, assets and expenses - if the accused person receives more than $360 per week in income after living expenses are deducted -> not eligible
32
oath
a solemn declaration by which a person swears the truth on a religious or spiritual belief. Without the religious or spiritual belief, it is called an affirmation
33
Open processes
Central to the achievement of fairness - hearings conducted in public - court judgements made available to the public - ensures processes and decisions are fair and accurately reported, justice can be 'seen to be done', and the institutions and people who administer justice can be scrutinised by the public and held accountable for their actions
34
original jurisdiction
the power of a court to hear a case for the first time (i.e. not on appeal from a lower court)
35
Participation
key characteristics: - opportunity to know the case put against them - opportunity to prepare a defence - opportunity to examine witnesses - use of a lawyer - use of an interpreter - tried without unreasonable delay - allowing some victims to give evidence using alternative arrangements - the use of victim impact statements - providing an opportunity for victims to give their views to the prosecution about certain matters (such as plea negotiations)
36
plea negotiations
(in criminal cases) pre-trial discussions between the prosecution and the accused, aimed at resolving the case by agreeing on an outcome to the criminal charges laid (aka charge negotiations)
37
presumption of innocence
the right of a person accused of a crime to be presumed not guilt unless proven otherwise
38
respondent
the party against whom the appeal is made
39
sanction
a penalty (e.g. a fine or prison sentence) imposed by a court on a person guilty of a criminal offence
40
self-represented party
a person before a court or tribunal who has not engaged (and is not represented by) a lawyer or other proffessional
41
specialist CLC
a community legal centre that focuses on a particular group of people or area of law (e.g. young people, asylum seekers, domestic violence and animal protection)
42
statute
a law made by parliament; a bill which has passed through parliament and has received royal assent (aka legislation or an Act of Parliament)
43
substantive equality
if treating people the in the same way could cause disparity or disadvantage, then measures should be put in place to allow people to participate in the justice system without disparity or disadvantage (i.e. different treatment)
44
unanimous verdict
a decision where all the jury members are in agreement and decide the same way (e.g. they all agree the accused is guilty)
45
victim
a person who has suffered directly or indirectly as a result of a crime
46
victim impact statement
a statement filed with the court by a victim that is 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
47
Victoria Legal (VLA)
a government agency that provides free legal advice to all members of the community and low-cost or no-cost legal representations to some people who cannot afford a lawyer
48
common law
law made by judges through decisions made in cases. Aka case law or judge-made law (as opposed to statute law)
49
Victorian Law Reform Commission (VLRC)
Victoria's leading independent law reform organisation. The VLRC reviews, researches and makes recommendations to the state parliament about possible changes to Victoria's laws.
50
examination-in-chief
the questioning of one's own witness in court in order to prove one's own case and disprove an opponents case
51
cross-examination
the questioning of a witness called by the other side in a legal case
52
Law Council of Australia
the peak national representative body of the Australian legal profession. It advocated on behalf of the legal profession at a national level about issues such as access to justice
53
pro bono
a Latin term meaning 'for the public good'; a term used to describe legal services that are provided for free (or at a reduced rate)
54
Human Rights Charter
the *Charter of Human Rights and Responsibilities Act 2006* (Vic). Its main purpose is to protect and promote human rights
55
Royal Commission
the highest form of inquiry into matters of public concern and importance. Royal commissions are established by the government and are given wide powers to investigate and report on an important matter of public concern
56
intergenerational trauma
a psychological response to highly distressing, stressful or oppressive historical events, such as war or significant injustices, which is passed on to future generations. First Nations people experience intergenerational trauma for many reasons, including being subjected to brutal and harmful government policies, racism and discrimination since the British colonisation of Australia
57
bail
the release of an accused person from custody on condition that they will attend a court hearing to answer the charges
58
Koori Court
a division of the Magistrates' Court, Children's Court and County Court that (in certain circumstances) operates as a sentencing court for First Nations people
59
VLA - Free legal information
- VLA's website has free information for all Victorians about the law, court processes and basic legal principles
- Partnered with CLCs and Aboriginal legal services to create the Victims Legal Service which provides information and advice to victims through its helpline
60
VLA - Free legal advice
- available victims who are seeking assistance with obtaining financial compensation for loss they have suffered, and to accused who need it most (depends on their income).
- Advice may be given in person, over the phone, or via video conference, about what happens in court, or about the law that applies to the case (or for victims: - how to make an application for financial assistance CA - or get compensation from the offender (cannot be used to get support as a witness or in civil claims))
- VLAs Help Before Court service is available for people charged with a criminal offence in the Magistrates' or Children's Court (for those who need it most - dependent on income and legal matter)
61
VLA - duty lawyer services
Available in the Magistrates' or Children's Court - available to accused people who satisfy the income test and are facing a straightforward charge (people in custody do not need to satisfy the income test) - (for victims -> those who are most in need of legal help -> no income test applies -> children and those with a disability are prioritised - For victims seeking a personal safety intervention order - duty lawyer can provide advice or information and may represent the victim on the day)
62
purposes of plea negotiations
- to ensure certainty of the outcome of a criminal case
- to save costs, time and resources
- to achieve a prompt resolution to a criminal case without the stress, trauma and inconvenience of a criminal trial (or hearing)
63
what influences the appropriateness of plea negotiations?
- whether the accused is willing to cooperate in the investigation or prosecution of co-offenders, or offenders of other crimes
- the strength of the evidence
- whether the accused is ready and willing to plead guilty
- whether the accused is represented
- whether the witnesses are reluctant or unable to give evidence, which would jeopardise the prosecution's ability to achieve a guilty verdict
- The possible adverse consequences of a full trial, including the stress and inconvenience on victims and witnesses giving evidence
- the time and expenses involved in the trial
- the views of the victim
64
specialisation
within the court hierarchy, the courts have been able to develop their own areas of expertise or specialisations, due to their specific jurisdictions.
65
What are the criminal jurisdictions of the Victorian courts?
Magistrates' Court -
OG = * all summary offences and indictable offences heard summarily * Committal proceedings, bail applications and warrant applications
County -
OG = indictable offences except murder, attempted murder, certain conspiracies, corporate offences
Appellate = From the Magistrates' Court on conviction or sentence
Supreme (Trial)
OG = Most serious indictable offences (listed above)
Appellate = From the Magistrates' on points of law
Supreme (Appeal) - Appellate = From the County or Supreme (Trial) - From the Magistrates' where the chief Magistrate decided the case
66
Roles of the judge and magistrate
- Act impartially
- Manage the trial or hearing
- Decide (Magistrate) or oversee (judge - give directions to jury and summarise the case) the outcome of the case
- Sentence an offender
67
Roles of the jury
- be objective
- listen to and remember the evidence
- Understand directions and summing up given by the judge
- Deliver a verict
68
roles of the prosecution
- disclose information to the accused
- participate in the trial or hearing
- make submissions about sentencing
69
roles of the accused
- Participate in the trial or hearing
- make submissions about sentencing
70
How do VLA and CLCs achieve the principle of fairness
- Information, advice, and representation all support participation in the justice system
- Support from VLA or CLCs supports the right outcome, which is fair
- Eligibility requirements for ongoing legal representation are objective, meaning they are impartial (fair)
71
How do VLA and CLCs achieve the principle of equality
- Eligibility requirements for VLA are the same for everyone (formal equality)
- A grant of legal assistance or duty lawyer helps correct a disparity (substantive equality)
- Free legal information is available to everyone, regardless of their income or means
- certain aspects are given to eligible people who are most in need, prioritising the most vulnerable in our society (substantive equality)
72
How do VLA and CLCs achieve the principle of access
- VLA may be able to provide ongoing legal representation to people who cannot afford it -> ensures they are informed
- Free legal information ensures people know about their legal rights
- Victims can engage with VOCAT through support from Victims Legal Services
- the free legal information may not be enough for certain people, particularly those who cannot otherwise access legal services
- information provided in many languages and CLCs provide free interpreters
DO NOT ACHIEVE:
- Strict eligibility requirements for free legal representation with VLA means not everyone can access free legal representation - asset test can exclude many, especially those in the middle range
73
How do plea negotiations achieve the principle of fairness
For society, offenders may plead guilty even if a conviction at trial is unlikely, helping to achieve justice
DO NOT ACHIEVE: - The accused may enter a plea negotiation without seeing all the evidence against (committals, etc)
- An unrepresented accused person may feel pressured into pleading guilty, even if they are innocent
- plea negotiations do not need to be disclosed and can be held privately -> lack of transparency (open processes)
74
How do plea negotiations achieve the principle of equality
DO NOT ACHIEVE: - the process around plea bargaining is prosecution dependent, so there is limited clarity around the same/equal treatment in similar matters
75
How do plea negotiations achieve the principle of access
- Can make the criminal justice process easier for victims, as they avoid having to go through to trial
- Improves efficiency in the court system, aiming to reduce backlogs
DOES NOT ACHIEVE: - Plea bargaining can limit access for victims, as their views may not be accounted for
- If the accused is unrepresented, they may not fully understand the processes involved
76
How does the court hierarchy achieve the principle of fairness
- Having appeals allows you to pursue the case further if you feel you are treated without impartiality, promoting participation and just outcomes
- Specialisation ensures outcomes are correct, therefore just
77
How does the court hierarchy achieve the principle of equality
- If you feel like you have been treated with disparity or disadvantage, you can pursue this further (through appeals)
78
How does the court hierarchy achieve the principle of access
- Having specialised courts ensures greater timeliness, promoting engagement with the justice system
DOES NOT ACHIEVE: - Appeals can add extra steps to a case, making it more financially difficult to pursue or stressful
- no automatic right to appeal -> generally must establish grounds to appeal
- Court hierarchy can be confusing
79
How do legal practitioners achieve the principle of fairness
Legal practitioners ensure the best evidence is presented
80
How do legal practitioners achieve the principle of equality
DOES NOT ACHIEVE: - Parties not on equal terms -> prosecution has more resources
81
How do legal practitioners achieve the principle of access
- Legal representatives ensure people can understand proceedings and get the best possible outcome
DOES NOT ACHIEVE: - Not everyone can afford legal representation
82
How do costs impact fairness
- Lack of affordable legal representation -> cost may lead an accused person to be unrepresented, which could result in an unfair trial
- Disparity in legal representation can arise
- Unbalanced representation can lead to unfair outcomes
- Quality of case presentation, often linked to the cost of representation, can unduly influence the outcome
Strengths/measures: - VLA and CLCs can support those with low socioeconomic status charged with a serious offence (those who are unable to afford legal representation)
83
How do costs impact equality
- Inability to afford the costs of an appeal
- Those who can't afford legal representation or don't qualify for VLA grants risk unequal treatment before the law
- Costs put the accused at a disadvantage, not the prosecution
Strengths/measures: - Judges in the County and Supreme Courts can order VLA to provide lawyers for those who can't afford it
84
How do costs impact access
VLA's limited funding means some individuals above the low-income requirement may not receive grants
- Not affording legal representation can impact the ability of an accused person to engage with the justice system in an informed manner
- High costs for filing fees and legal representation can deter individuals from appealing verdicts
Strengths/measures: - The existence of Legal Aid and CLCs can support those who are unable to afford representation -> VLA offers duty lawyers or grants to assist disadvantaged individuals facing criminal charges
85
How does time impact fairness
- Delays add to the costs
- Delays can lead to evidence becoming less reliable or lost, perhaps leading to incorrect and unjust outcomes
- waiting for closure and justice increases stress and anxiety for victims
- delays often caused by factors beyond the victim's control, making it unfair
Strengths/measures: - Courts being specialist such as the Magistrates' Court handling high volumes of less serious cases for quick resolution, minimises delay
- Plea negotiations encourage early resolution in criminal matters, further enhancing fairness
- Delays can ensure both parties have adequate time to prepare, ensuring a case is decided based on the best evidence and arguments
86
How does time impact equality
- Delays can be distressing for victims and accused individuals who have mental health issues or disabilities
- If the accused is on remand, they will be further disadvantaged as they have to continue paying legal costs
- Delays disproportionally affect an accused person
Strengths/measures: - Plea negotiations ensures a resolution in a timely manner as all accused people can enter into a plea
87
How does time impact access
- Fear of delays may deter victims from reporting crimes, limiting access to justice
- Longer criminal trials increase the costs of legal representation, making justice less affordable for the accused
Strengths/measures: - Few matter resolved by jury trials, limiting delays associated with juries
- Judge-alone trials are often quicker, increasing access to justice for other victims
- Courts in the hierarchy specialise in certain types of cases, reducing delays
- Specialisation allows judges to resolve cases efficiently
- Faster case processing enables more cases to be handled each year, improving access justice
88
How do cultural differences impact fairness
- Refugees, asylum seekers and recent migrants may struggle with oral evidence due to language barriers, potentially leading to incorrect or unjust outcomes
- First Nations peoples may face difficulties in presenting evidence, risking misinterpretation and unjust verdicts
- Cultural differences could expose an accused person to bias or prejudice, leading to an outcome that is not impartial
Strengths/measures: - prosecution is responsible for presenting all relevant facts and legal principles to ensure fairness
- This approach helps overcome challenges faced by First Nations people or non-Australian-born individuals in presenting their case
- The *Evidence Procedure Act 2008* (Vic) sets legal standards for presenting evidence
89
How do cultural differences impact equality
- First Nations peoples and non-English-speaking migrants may struggle to present evidence, affecting equal treatment in the justice system
- High incarceration rates among First Nations people suggest systemic biases, leading to potentially harsher penalties based on race
- Geographic barriers limit legal representation access for Aboriginal and Torres Strait Islander peoples in rural areas, creating an unequal footing compared to prosecution
Strengths/measures: - VLA offers legal representation to all accused, including First Nations people and migrants, if they meet specific criteria
- Koori Court offers culturally-relevant sentencing for First Nations people who plead guilty, aiming to improve equality
90
How do cultural differences impact access
- Distrust of police among refugees due to past trauma may lead to underreporting of crimes, affecting access to justice
- Lack of familiarity with the legal system among migrants, refugees and asylum seekers limits awareness of legal rights, reducing access to justice
- Migrants on temporary visas may avoid reporting offences due to fears of jeopardising their visa status
- Cultural differences impact the ability for an accused person to engage with the justice system in an informed manner
Strengths/measures: - Victorian Aboriginal Legal Service provides specialised legal advice and assistance to First Nations peoples who live in Victoria
- Services are available across rural and metropolitan areas in Victoria improving justice access for Aboriginal and Torres Strait Islander peoples in remote locations
- Koori Court aims to offer culturally-relevant sentencing for First Nations offenders, with the goal of reducing reoffending
91
How do the parties achieve fairness
- Prosecution and accused are given the opportunity to present their case
- No requirement for the accused to present evidence to prove their
- Parties have control, meaning they will ensure the best evidence gets presented
NOT ACHIEVED: - Self-represented parties may struggle to understand how to present legal arguments and evidence in the best light
92
How do the parties achieve equality
- Both the prosecution and the accused have the same opportunity to present their case to the court, regardless of personal characteristics
NOT ACHIEVED: - Self-represented parties may be at a disadvantage if they are unable to present all relevant evidence to prove their case
- parties not on equal terms -> prosecution has more resources
93
How do the parties achieve access
- Courts will provide some guidance regarding court procedures to parties who are representing themselves
- Parties are able to utilise legal representation, ensuring they can understand and engage with proceedings fully
NOT ACHIEVED: - Self-represented parties may struggle to understand how to present legal arguments and evidence in the best light
- Not everyone can afford legal representation
94
How does the jury achieve fairness
- Trial by peers -> reflects community values
NOT ACHIEVED: - Legal cases are complex and legal terminology can be hard to understand
- Juries are not trained to put aside their prejudices and biases
95
How does the jury achieve equality
- every trial for an indictable offence uses a jury (all accused people charged with an indictable offence are entitled to a trial by jury
NOT ACHIEVED: - some individuals are ineligible or disqualified from jury service, meaning not all community members can be part of a jury
96
How does the jury achieve access
Juries ensure less legal jargon, prooting access for self-represented parties
NOT ACHIEVED: - Very few matters are tried by jury
- Juries can create delays
97
How do the judge and magistrate achieve fairness
- Judges are independent and unbiased/impartial
DOESN'T ACHIEVE: - Judges can only explain court procedures and cannot assist self-represented parties
98
How do the judge and magistrate achieve equality
- Both parties receive no help from the judge
- Judges ensure the rules of evidence are consistent across all trials
NOT ACHIEVED: - Judges are only human and may have personal biases
99
How do the judge and magistrate achieve access
- Judges can apply court rules to protect victims
- Judges can explain points of power to jury members to improve understanding
NOT ACHIEVED: - Judges rely on the parties to present all relevant evidence during the trial
100
Roles of VLA
- Free legal information
- Free legal advice
- Duty lawyer services
- Grants of legal assistance (paying for a lawyer)
101
Roles of CLCs
- Basic legal information
- Legal advice and assistance
- Ongoing casework
- Duty lawyer services (for victims)
