Headstart Flashcards
be good (21 cards)
Classify the three ways offences are categorised and where they’re heard
Summary Offences: Magistrates Court
Indictable Offences: County or Supreme Court with a judge and/or jury
Indictable offences heard summarily: Magistrates Court
What are summary Offences?
Def: Summary offences are minor/less severe crimes that are committed by the accused.
Sum. offenc. can be recognised by:
-Listed in Summary Offences Act 1966
-being heard in Magistrates Court
Egs: jaywalking, drink driving, common assault
Where are summary offences heard?
Magistrate’s Court, where more than 95% of criminal offences are heard in Victoria
Pre-trial procedures:
- There are no committal hearings for summary offences, nearly all accused are granted bail for summary offences. Most summary offences are resolved through a single mention hearing whereby the accused will be sentenced.
Common Sanctions:
-Adjourned undertaking (with or without a recorded conviction)
- Fines
-CCO
-Imprisonment (max 5 years)
What are indictable offences?
Def:
Indictable offences are serious/ more severe crimes.
Indictable offences can be recognised by:
-The offence being listed in the Crimes Act (Vic) 1958
-It is heard during a trial in the County or Supreme Court
-It involves a committal
e.g: Murder, robbery, sexual offences, kidnapping
Where are indictable offences heard?
In the County or Supreme Court and final hearings are referred to as trials. A jury is used to determine guilt if the accused pleads ‘not guilty’
What are Indictable offences heard summarily?
Def: Indictable offences heard summarily are a group of indictable offences that are less serious
Legislation:
-Listed in the Criminal Procedures Act 2009 (Vic)
An accused person will generally choose to have their offene heard summarily where possible as it is less costly, time-consuming and, the maximum penalties imposed in the Magistrates’ court a less severe During a committal proceeding, the Magistrate will determine whether an offence can be heard summarily. This may be allowed if:
-The offence is not punishable by a maximum term of more than 10 years imprisonment
-The court agrees and determines that it is appropriate
-The accused consents to having their offence(s) heard summarily
What is the Pre-trial procedure- Committals?
Def:
Committal - usually referring to the whole committal proceedings is a pre-trial procedure that occurs before indictable offences are heard at trial in the County or Supreme Court. At this stage, it is the responsibility of the prosecution to demonstrate to the Magistrate that there is a ‘prima facie’ - at first glance- suffiecient evidence to support a conviction at trial.
On avg, committals take 7-8 months over several hearings. Their purpose is to:
- Ensure that only strong cases with sufficient evidence proceed to trial
-Allows the accused the opportunity to enter a plea after learning about the prosecution’s case against them
-Ensure a fair trial by making sure that prosecution discloses their case to the accused
-Provides the accused the opportunity to test the prosecution’s case through cross examining witnesses
What is the Prosecution?
Prosecute:
To conduct legal proceedings against a person
Def: the prosecution is a term that is used to describe the party that presents evidence in court on behalf of the state (Vic) or the Cth against a person accused of committing the crime. The Director of Public Prosecutions (DPP) and Crown Prosecutors prosecute serious crimes on behalf of the state in the County and Supreme courts. For minor offences, Victoria Police officers will usually prosecute cries in the Magistrates’ court
NOTE: The Victim is not a party in criminal cases. they can be apart of prosecution though
Who are the accused?
This is the individual who has been charged with a crime. There can be more than one accused in the case
Burden of Proof (crim)
Def: The burden of proof is a requirement within the legal system that places responsibility on one party to prove the facts of a case. For criminal law, this onus (responsibility) rests upon the prosecution
Burden Reversed:
-if accused defence for their actions is mental impairment
-Possession of an illegal substance on their property and cannot demonstrate to the court on the contrary
Standard of proof (crim)
Def:
The level of proof or the certainty or strength of evidence required to prove the case.
(crim case standard= beyond a reasonable doubt)
In the County + Supreme Court, the jury will be instructed that they must be satisfied of guilt beyond a reasonable doubt. In the Magistrates’ Court, the Magistrate will need to be convinced as there are no jury members present.
Presumption of innocence (crim)
Def: To be presumed innocent until proven otherwise
Legislation:
- Section 25 Charter of Rights and Responsibilities Act 2006 (Vic) , prior to this it was a well-established common law right
How is presumption of innocence upheld?
-The right to silence; an accused person does not have the obligation to answer any questions (besides name+ address to police)
-The accused can apply for bail which is normally granted unless the Magistrate is convinced that they will abscond, be a danger to the community or themselves
-For indictable offences, the prosecution must go through committals to demonstrate that there is sufficient evidence to proceed to trial
-Prior Convictions cannot be revealed until sentencing
-The police must reasonably believe that a person has committed a crime before arresting them
-An offender has the right to appeal a wrongful conviction
What are the Rights of the Accused?
- The right to be tried without unreasonable delay
-The right to silence
-The right to trial by jury
How are the rights of the accused safeguarded?
Legislation:
- protected by the Victorian Charter, specifically Charter of Human Rights and Responsibilities Act 2006 (Vic) (aka human rights charter)
The Right to be tried without unreasonable delay
Def:
A person charged with a criminal offence is entitled to a guarantee that they will be tried without unreasonable delay (S21 and 25 of the Charter). This right is without discrimination which means every accused person is entitled to this provision.
What is ‘Reasonable’ is not defined but considered in conjunction with- the length of the delay, the complexity of the case, number of offences committed and the reasons for the delay
Importance of right to trial without unreasonable delay
-Witnesses memories may fade, including key aspects which impact outcome of trial
-Upcoming trials cause stress on accused, victims and their families + anxiety
- if a criminal trial has garnered media attention, increased delays may make it more difficult for 12 unbiased jury members to be found as most members of the public could have heard about the case and formed their own opinions about it prior to commencing.
-Long delays before the trial increases legal costs
The right to silence
Def:
refers to an entitlement whereby the accused does not have to say or do anything when being charged with an offence. It helps the accused to avoid self-Incrimination
Legislation:
Evidence Act 2008 -negative inferences cannot be drawn should an accused refuse to answer questions
How is the right to silence safeguarded?
-the accused can refuse to answer any questions and does not have to give information as part of an investigation of a crime
-The accused cannot be forced to give evidence in a criminal trial or answer any questions
-the accused does not have to file a defence or call a particular witness
-Under the Jury Direction Act 2015 (vic) an accused lawyer can request that the judge direct the jury to be aware that failure of an accused to given evidence + call witnesses cannot be used as evidence against the accused as a sign of guilt
Exceptions:
-If the police believes that a person has committed or about to commit a crime, or may be able to assist in an investigation of an indctable offence, the person must give their name and address if asked to do so
Rights of Victims?
-The right to give evidence using alternative arrangements
-right to be informed about the proceeding
-the right to be informed of the likely release date of the offender
right to give evidence using alternative arrangements
Def: refers to a situation whereby a victim is also a witness to the crime and may be required to testify in court. when this occurs, victims are entitled to certain adjustments to accommodate and lessen further trauma/stress
