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legal year 12 > criminal law > Flashcards

criminal law Flashcards

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1
Q

victorian legislation for types of offences

A

summary offences act 1966 (vic)
crimes act 1958 (vic)

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2
Q

what are summary offences

A

-summary offences are minor crimes
eg. drink driving, jaywalking, minor assault
-hearing is heard in magistrates court

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3
Q

magistrate courts and common sanctions

A

-adjourned undertaking
-fines
-CCO
-imprisonment for max of 5 years

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4
Q

indictable offences

A

-are serious crimes and found within crimes act 1958 and are heard either in the county or supreme court
eg. murder, robbery, sexual offences

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5
Q

indictable offences heard summarily

A

-indictable offences that can be heard and determined summarily= can be heard in magistrates court

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6
Q

pre trial procedures= committal hearings

A

-only occurs for indictable offences= it is the responsibility of the prosecution to show that at “prima facie” or first glance that there is sufficient evidence to continue case to trial
-average take around 7-8 months

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7
Q

committal procedure purpose

A

-ensure that only strong cases with sufficient evidence proceed to trial
-allows the accused the opportunity to enter after learning the prosecutions case
-prosecution discloses their case to the accused
-accused can cross examine witnesses

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8
Q

burden of proof

A

-responsibility or onus on a party to prove the facts of the case= in criminal rests upon the prosecution

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9
Q

burden of proof reversed

A

-if the accused defence is mental impairment
-possession of an illegal substance on their property and cannot demonstrate to the court on the contrary

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10
Q

standard of proof

A

-level of proof/extent/strength of evidence required to prove the case
-in criminal= beyond reasonable doubt

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11
Q

beyond reasonable doubt

A

-there is no other logical or reasonable explanation onto whether the crime did or didn’t happen

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12
Q

the presumption of innocence

A

-an accused is presumed innocent until they are proved guilty or plead guilt
-can be found within the Charter of Human Rights and Responsibilities 2006 (Vic)

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13
Q

how presumption of innocence operates

A

-accused can apply for bail
-for indictable offences, must go through committal to demonstrate sufficient evidence
-prior convictions aren’t revealed until sentencing
-an offender has a right to appeal

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14
Q

rights of the accused

A

-right to trial without unreasonable delay
-right to silence
-right to trial by jury

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15
Q

right to be tried without unreasonable delay

A

-have their trial heard in a timely and efficient manner
-may be natural delays which occur/ time frames are included 3 months for a committal mention for sexual offences and 6 months for a non sexual offences

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16
Q

right to silence

A

-accused does not have to say or do anything when being charged
-the Evidence Act 2008
-accused can remain silent/ no negative conclusions can be drawn if accused does not answer questions/ same applies with only answering selective questions
-can refuse to answer q’s
-cannot be forced to give evidence at trial

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17
Q

right to trial by jury

A

-should an accused plead not guilty to an indictable offence, guilt is determined by a group of their 12 peers
-juries act 2000 (Vic) + Criminal Procedure Act 2009 (Vic)

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18
Q

who is a victim

A

-a person who has suffered directly or indirectly as a result of a crime
Victim’s Charter Act 2006 (Vic)

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19
Q

rights of victims

A

-right to give evidence using alternate arrangements
-right to be informed about the proceeding
-right to be informed of the likely release date of the offender

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20
Q

right to give evidence using alternate arrangements

A

-whereby a victim is a also a witness to a crime and may be required to testify in court= when this occurs, victims are entitled to certain adjustments to reduce second victimisation and trauma and stress
-Criminal procedure Act 2009 (Vic)
possible offences that this right is ELIGIBLE for:
-a sexual offence
-a family violence offence
-an offence of obscene, indecent language, threatening behaviour
-an offence of sexual exposure

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21
Q

arrangements available

A

-testify in a seperate room
-to request a screen to be put up
-to have a support person or dog by their side when testifying
-to request that legal rep. does not wear formal robes
-to request that the legal rep. for the accused not ask certain q’s directly to the victim

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22
Q

right to be informed about proceedings

A

victims may require additional support due to being adversely affected by the crime
-details of the offence that the accused has been charged with
-the date/time/place of the hearings of the charges
-the outcome of the criminal proceedings including sentence imposed and why lesser or fewer charges have been laid
-details of any appeals
HOWEVER are not entitled to info that may put investigation at risk or if they choose not to receive information
-

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23
Q

right to be informed about the release date of the accused

A

-a person who is a victim of a criminal act of violence and can apply to be included in the Victims Register= can receive certain info about an offender who has been imprisoned including notification of the release date of prisoner on parole at least 14 days before the release+ if offender escapes from prison+ if offender is applying for parole

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24
Q

what offences does the right to be informed eligible for

A

-rape and other sexual offences/ aggravated burglary/ kidnapping/ stalking/ child stealing/ offences involving assault

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25
what are the principles of justice
-fairness -equality -access
26
fairness and its subcategories
-app people can participate in the justice system and its processes should be impartial and open subcategories: -impartial processes -open processes -participation
27
impartial processes
-courts and personnel, including judges, magistrates and jury members, are independent and impartial--> means they can't show any bias or prejudice towards either party and case must be decided on facts and evidence not prejudices eg. judge and jury must acknowledge if there is an association between either parties and remove themselves/ jury members are from community which reduces risk of prejudice/ both sides have ability to challenge a juror if there is perceived bias
28
open processes
ability for community to be informed and to be able to scrutinise the legal system through processes being transparent allowing legal personnel to be held accountable and answerable for their actions eg. hearings are in public/court decisions are public/jury members are from community allowing for them to deliver justice
29
participation
refers to various individuals to engage within the criminal system eg. preparing their case through knowing their facts/ opportunity to examine witnesses/ use of legal rep/ victim impact statements/ presumption of innocence
30
equality
all people engaging in the justice system are treated in the same way however if same treatment creates disparity or disadvantages, adequate measures should be implemented to allow everyone to engage within justice system
31
formal equality
-all individuals are treated the same and given the same levels of support regardless of their personal differences or characteristics such as race, age and gender eg. all accused are afforded the presumption of innocence/ those who plead not guilty should be able to utilised courts/ fair trial and same processes
32
substantive equality
-if legal system did treat people in the same way but in doing so causes disadvantages, then measures should be put in place to eliminate the disparity eg. interpreters/ legal aid/ alternate arrangements/ koori court
33
access and subcategories
-all people should be able to engage with the justice system and its processes on an informed basis subcategories: -engagement -informed basis
34
engagement
-physical access=location of courts in vic--> those in rural may not have same access -tech access= hearings and conferences can be held virtually--> again those who live rural or have disabilities may have difficulty accessing these functions -financial access=vla is limited in tis funding--> ability to support ALL individuals quite limited
35
informed basis
-people should be aware of their legal rights and processes= receiving adequate info in order to make an informed decision -education= those wither higher levels of edu= more informed + info published can assist people -access to legal support services=having free access to legal services can help ppl be informed -legal edu= legal rep can help ppl be aware of rights etc
36
victorian legal aid
-an independent govt funded agency that provides free legal info to the community and legal advice and representation to people who cannot afford a lawyer -have a fee tier -can assist with indictable offences
37
vla assistance for the accused
1. free legal info= available for all accused= free legal info about law+ court processes+ rights/ available through websites and booklets 2. free legal advice (help before court services)= based on an income test and legal matter+ not available for all indictable offences= offers advice through face to face/ calls= can give advice on rights etc... 3. duty lawyer= only available for accused who appear in mag or children's court+ have to satisfy the income test+ face significant charges 4. grants of legal assistance= not available to all= must pass the means and merits tests= this includes prep legal document/ providing legal rep to accused in court/ assistance is given by a vla lawyer
38
income test
- a financial threshold applied by vla to determine whether a duty lawyer can represent an accused= show have limited income and that main income is through welfare= through health care cards/pension cards
39
means test
-a financial threshold that vla applies when individuals are seeking grants of legal assistance= considers a persons income and assets= if person receives more than 360 a week in income= not eligible -economic value
40
merits test
-applies to those receiving grants of legal assistance= based upon the legal matter and seriousness of the offence
41
types of assistance for victims vla
1. free legal info= provides link to external resources such as the Victims of Crime Assistance eg. provide financial compensation approx 60k for primary victims 2. free legal advice= available to victims seeking assistance with financial compensation+ file an application+ get compensation 3. duty lawyer= only available to those most in needs in the mag courts= no income test applies to those vulnerable/ for victims seeking personal safety intervention orders 4. grants of legal advice= strict guidelines applies= state reasonableness test= extent of any benefit or detriment that a grant may give/ used for limited matters= relation to intervention orders
42
clc
-are independent, govt funded agency= aims to provide free legal services for individuals including legal info and advice= approx 47 clc in vic -not appropriate for indictable offences -smaller grass roots -funded by vla
43
generalist clc
-these are established in designated suburbs or LGA to serve that community -must reside in the LGA to use
44
specialist clc
-est to focus on a particular group of individuals in society that may be deemed vulnerable to receiving legal assistance eg. youthlaw
45
what issues can clc assist with
-family violence/ parenting agreements/ fines and infringements/employment
46
what matters clc can NOT assist with
-rarely involve themselves with assisting an accused for an indictable matter--> can't assist= homicide related charges/ sexual offences/ aggravated assault/ robbery factors= type of legal matter/ other assistance is available/ whether a person has a good chance of success/ whether the clc has resources to assist
47
type of assistance for the accused provided to clc
-free legal info= -legal advice and assistance= drafting letters/ completing forms/ visa applications/ intervention orders/ wills/ resolving neighbourhood disputes/ employment contracts -ongoing casework= clc will provide case work or assistance for an accused this involves ongoing representation and assistance
48
types of assistance for victims clc
-basic legal info -legal advice and assistance=online/ face to face -duty lawyer= family violence protection orders/intervention hearings which is based on needs -ongoing casework
49
plea negotiations
-a private discussion that occurs within the criminal justice system in order for the accused to consider pleading to lesser charges or fewer charges= either for summary or indictable offences and occurs before sentencing/ involves both the accused and prosecution/ they occur= phone+ email+ face to face
50
important points for plea negotiations
-victims are not a party -sentence cannot be guaranteed -fewer charges= number of charges -lesser charges= refers to seriousness of crime
51
purpose of plea negotiations
-saves courts time and resources= trial can be avoided -provides certainty of the outcome= removes potential for acquittal by jury -avoid further trauma and stress and inconvenience on victims and witnesses
52
appropriateness of plea negotiations
-accused is willing to engage in negotiations with the prosecution and plead guilty -strength and evidence of prosecutions case is not strong -witnesses in case are reluctant or unwilling to give evidence at trial -witnesses and victims will experience adverse consequences since a full trial can lead to further trauma and stress -victim supports prosecution in doing a plea -time and expenses
53
Inappropriateness for plea negotiations
-accused argues they are innocent and plead not guilty -evidence of the prosecution is strong and can provide a harsher conviction -victims and witnesses want to testify -crime is heinous that an announcment needs to be made
54
vic court hierarchy
ranking of the courts based upon the severity and complexity of the cases in which they can adjudicate
55
reasons for a court hierarchy
-specialisation -appeals
56
specialisation
the level of expertise gained by the judge/ magistrate which is developed from hearing the same matters= allows for more consistency/ efficient and fair manner= link back--> ensure that their are clear jurisdictional boundaries
57
appeals
the application/ process to have a higher court review a decision= allows those who are dissatisfied with the outcome to have it reviewed in a higher court with a more experienced judge
58
grounds of appeal
-question of law=argue law has not been followed= allowing inadmissible evidence -appealing a conviction= burden and or standard has not been met -appealing a sentence
59
key personnel in courtroom
-judge -jury -parties
60
purpose of judge
purpose= act a trial referee= oversee the case to ensure that court procedures and rules of evidence are followed
61
role of judge
-act impartially= unbiased/cannot favour one side/ no apprehended bias= create a situation where a reasonable person may believe that the judge hearing case may not bring an impartial mind -manage the trial= both parties can present case/clarifying questions of witnesses/ calling new witnesses/determining admissibility of evidence -decide on the outcome of the case= giving directions to jury to ensure fair trial explaining legal definitions -sentencing the offender= parties will make submissions--> just must follow SENTENCING ACT 1991 (VIC)/ factor in aggravating and mitigating factors
62
strength of judge
-impartial= no party is disadvantaged -manage the hearing and ensure that both parties have the opportunity to oversee the case -able to assist self rep and can adjust the trial to accommodate more vulnerable people
63
weakness of judge
-still humans= risk of bias -lack of diversity=women are underrepresented -cannot overly interfere within a case
64
purpose of jury
-determine the guilt of the accused
65
roles of the jury
-impartial= unbiased+ no prejudice/ have no connection to any of the parties/ decide guilt on facts not bias -listen and remember evidence= jury members can take notes/ cannot conduct their own research or investigation -understand directions= listen to judge for directions and explanation of laws -deliver a verdict= participate with other jurors during deliberation/ reach a unanimous and or majority verdict
66
strengths of jury
-impartial= represent a random cross section of the community = reflecting views and values of society -unanimous decision= holds standard and burden to a high degree
67
weakness of jury
-impartiality isn't guaranteed= pre conceived bias and or from media -not everyone is allowed to participate in jury eg. prisoners/disabled people -not legally experienced -may result in further delays
68
parties
-prosecution and accused
69
party control
-deciding what and how they will present their case to judge/jury to prove their case prosecution= presenting their case in a way that meets the burden and standard of proof -accused party control= remaining silent/ cross examining witness/ deciding on what evidence to present to cast doubt
70
prosecution role and purpose
role= represent the state purpose: -disclose info to accused= inform accused about evidence being used in court/names and statements of witnesses -participate in trial= presenting an opening address to court=outlines the charges+ issues + evidence/ present evidence/ expert witnesses -submissions regarding sentencing
71
accused role and purpose
role= present their side of the case -participate in the trial=remain silent and do nothing/ present a defence/opening addresses/ cross examining witnesses -make submissions regarding sentences
72
legal practitioners
individuals who are legally trained to present their cases barristers= present the case solicitor= preparing the case=locate documents+ liaise with police+ obtain copies of evidence/ prepare witnesses
73
roles of legal practitioners
-draft documents and letters for clients= photographs and reports of evidence -researching the law and presenting evidence=gathering relevant case/ conduct interviews/ scrutinise previous legal decisions -opening address and closing statements -making evidence submissions
74
strengths of lp
-increase an accused chance of securing a nor guilty verdict -duty of prosecution is to present evidence allowing whole truth to be delivered -vla strict requirements=those who are significantly disadvantaged get legal rep
75
weaknesses of lp
-those who don't have financial means to afford legal rep -legal system is difficult to understand--> may not understand how to accurately respond to this info -different quality of lp -vla= not everyone meets requirements
76
factor influencing criminal justice system
-cost -time -cultural difference
77
costs
-obtaining legal advice= solicitors and barristers -witness fees -delays -cost to appeal
78
how are costs addressed
-access to vla and clc -committal proceedings -plea negotiations
79
time
-court backlogs -trial procedures=question and answer/oral evidence -collection of evidence -judges giving directions to juries -appeal CC= estimate a case will take 14-16 months
80
impacts of time
-increase victimisation due to evidence/ no closure -community at risk if violent offences remaining in the community
81
how time are addressed
-plea negotiations/ judge alone trials/ use of technology= hearings remotely
82
cultural factors
challenges that arise for individuals= judge is impartial and cannot assist/ jury is a decider of facts and guilt/ process leading up to trial is complicated/ app procedures are conducted in english and unless an interpreter is used groups impacted: refugees and recent migrants=english x first lang+ legal jargon+mistrust of police+ fail to understand rights etc / fnp=group agreement is way to resolve conflict+ cultural taboo
83
how cultural factors are addressed
-koori court=access to culturally relevant sentencing that more effectively acts to reduce reoffending=sentencing court+informal+involves elders+cannot hear SA offences -interpreters= allows for non english speakers to understand court processes
84
purposes of sanctions
-rehabilitate -punish -deter -denunciation -protect
85
rehab
-to support/restore= there is a cause to the offender actions which can be restored eg. counselling/ therapy/ educational classes while in prison--> proven to work= reoffending rate in vic= 44%
86
punishment
-inflict pain/loss to ensure offender is penalised proportionally= should match the gravity/degree of crime committed
87
deterrence
-act of discouraging an offender or other individuals from reoffending or committing similar crimes -general deterrence= targets community -specific deterrence= targets the offender
88
denunciation
-to publicly condemn an offenders behaviour to show disapproval
89
protection
-ensure that offender does not prove a significant risk to society
90
types of sanctions
SENTENCING ACT 1991 (VIC) -fines -cco -imprisonment
91
CCO
-a non custodial order by court that allows offender to remain within community with conditions attached -duration=for a single offence= max is two years and multiple is 5 yrs
92
conditions of a cco
standard= not reoffend/ not leave state/ notify cco officer if there is a change of address/ comply with directions additional charges= completing 600 hrs of community service/ abiding by a curfew/ rehab/ avoiding contact with certain people/ staying away from certain places/ ankle monitoring
93
imprisonment
-removes offender from community concurrent= served at same time cumulative= served one after another
94
aggravating factors
-factors taken into account that increase the offenders culpability and likely sentence eg. severity of crime/offender had prior convictions/offence took place whilst offender was on bail or cco/ hate crimes
95
mitigating factors
-factors taken into consideration that decrease offenders culpability and lead to a reduction eg. remorse/ age of offender/ traumatic past/ limited prior convictions/ cooperating with police/ offender pleaded guilty early/ injury was not substantial
96
guilty pleas
-can be a mitigating factor= plead guilty= trial will not be conducted
97
victim impact statements
-a written or verbal statement made to a court about effect of offence on victim a VIS can include= physical impacts/ emotional loss/ financial loss= indicate to judge about severity of crime

legal year 12 (6 decks)

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