outcome 3- sanctions Flashcards
(46 cards)
IF AN INDIVIDUAL HAS BROKEN THE LAW BY COMMITTING A CRIME, WHO ENFORCES THE LAW?
the police and delegated bodies
What is the role of the police
The role of the police is to serve the community and to enforce the law.
They do this in three main ways:
prevention
The role of the police is to serve the community and to enforce the law.
They do this in three main ways
investigation
Identify potential witnesses and collect evidence of their potential wrong doing:
talk to victims and witnesses
question possible suspects
examine the crime scene
look for and gather forensic evidence
conduct searches of people and property
Prosecution
charging an individual with a crime and commencing legal proceedings against them in court
usually for summary offences in the Magistrates Court
For indictable offences, evidence handed off to the Office of Public Prosecutions
what does the Australian federal police do?
preventing, investigating and prosecuting crime at a federal level
investigate offences against the law of the Commonwealth
specific powers e.g. protective service officers have power to arrest without a warrant
delegated bodies
In addition to state and federal police, there are a number of bodies that are delegated power by the Victorian Parliament to make and enforce law.
delegated bodies
Victorian delegated bodies
Some of the Victorian bodies that have the power to enforce criminal laws are listed in Source 3.
Victorian delegated body Consumer Affairs Victoria
Environment Protection Authority Victoria (EPA) Local councils
State Revenue Office (SRO)
VicRoads
Victorian WorkCover Authority (WorkSafe Victoria)
Wage Inspectorate Victoria
Victorian Building Authority (VBA)
Description of powers to enforce criminal laws Consumer Affairs Victoria can take action in relation to breaches of consumer trading laws and tenancy laws.
The EPA has the power to investigate breaches of environmental laws and to commence proceedings for offences committed in relation to the environment. Local councils govern at a local level and have the power to enforce a local law that makes an act or an omission a criminal offence.
The SRO is Victoria’s tax collection agency. The SRO also administers laws relating to taxes, duties and levies. For example, the SRO can take action in relation to individuals who seek to avoid paying state taxes, or who provide false or misleading information about their personal affairs.
VicRoads has authority to prosecute certain road and traffic offences. It can also issue infringement notices for breaches of road rules.
WorkSafe Victoria monitors and enforces compliance of Victoria’s occupational health and safety laws. It can investigate breaches of laws and prosecute in relation to any breaches.
Wage Inspectorate Victoria can monitor and enforce compliance with wage theft laws, and investigate employee entitlement offences (such as where a business has underpaid an employee).
The VBA regulates the building and plumbing industries in Victoria, and can monitor and enforce compliance with building laws.
What are rights and powers?
Every individual is entitled to certain rights and freedoms that are protected by certain laws or acts. This helps to avoids, abuse discrimination and victimisation.
There are also rights for people who are accused or guilty of a crime.
On the other hand, investigative and prosecution agencies also have powers that enable them to investigate crimes and bring about justice.
There must be a balance between the rights of individuals and the powers of the criminal justice system.
If institutions have too much power, individuals might be unjustly treated.
If powers are too few or too limited, law enforcement can become difficult or impossible.
what powers do institutions have?
while arresting:
Police have a number of investigative powers that are established in legislation (Crimes Act 1958 Vic)
Once a crime has been committed, the police have the power to arrest an accused person
Police can arrest without a warrant if the police believe it is neccessary to:
ensure the offender appears in court
preserve public order
prevent the repetition of an offence or other offences
ensure the safety or welfare of the public offender
if the officer reasonably believes the person has committed and indictable offence
can also use reasonable force when making an arrest
while questioning:
Under section 464A of the Crimes Act, if a person has been arrested and is in custody, an investigating official has the power to question that person within a reasonable time.
The person may be questioned to determine what involvement, they had, if any, in the offence.
in court proceedings:
In court, parties have certain rights and powers as the trial is being conducted.
The prosecution has the power to
prepare the case
speak with the witnesses
obtain evidence
negotiate with the accused (usually through their legal practitioners) about an early guilty plea
in imprisonments:
Once an accused is found guilty, they become called the offender and the court must impose a sanction.
Imprisonment is known as a sanction of last resort and involves removing an offender from society and placing them in jail for a period of time.
Management of prisons is governed by the Corrections Act 1986 (Vic).
Provides prison officers with various powers:
search and examine any person
seize unauthorised goods
arrange for medical tests for alcohol or drugs
require a prisoner to be electronically monitored
What rights do individuals have?
in arrests:
Individuals have certain rights in relation to an arrest to ensure that there is a balance between the power of arrest and the rights of the individual
refuse to attend a police station unless they are under arrest
if a person is arrested they must be informed of the reason for the arrest at the time of the arrest
an arrested person must be promptly brought before a court and that they have the right to be brought to trial without an unreasonable delay
a person does not need to say anything when arrested. only need to provide their name and address
If arrested a person must be released (on bail) or brought before a bail justice or Magistrate in the Magistrates’ Court within a reasonable time
while questioning:
To balance this power, rights are given to a person who is questioned
The person must first be informed that they do not have to do or say anything, but that anything they do or say may be given in evidence. Must be recorded if the crime is an indictable offence.
The person must be informed they can communicate with or attempt to communicate with a friend or relative and a legal practitioner.
The person has the right to an interpreter if they do not have sufficient knowledge of the English language
Communications with the person’s legal practitioner must not be overheard
The questioning can only happen within a reasonable time
The person may stay silent and does not need to respond to any other questions
If the person is under 18, a parent or guardian or independent person must be present during the questioning
in court proceedings:
During court proceedings, an accused also has rights. Many of these are protected by the Humans Rights Charter.
have the charge decided by a competent, independent and impartial court after a fair and public hearing
be presumed innocent until proven guilty
be informed promptly and in detail about the nature of and reason for the charge
be tried without unreasonable delay
obtain legal aid if the interests of justice require
have the assistance of an interpreter if needed
have the opportunity to challenge and rebut the evidence put against them
while imprisoned:
Every prisoner has certain rights under the section 47 of the Corrections Act.
right to be in the open air for at least an hour each day
right to be provided with adequate food and special dietary food if required
the right to be provided with suitable clothing
the right to have access to reasonable medical care and treatment, as well as to reasonable dental treatment
if the prisoner is intellectually disable or mentally ill, the right to appropriate special care and treatment
the right to practise a religion and join with others to practice that religion (so long as it does not breach prison security
the right to receive at least one half-hour visit a week
what is court hirarchy?
Two types of courts in Australia: State and Federal
In Australia, courts are ranked in a hierarchy, with the higher courts hearing more complicated and serious cases and lower courts dealing with minor offences.
what is the order of the court hierarchy?
High court of Australia
Supreme court (Court of appeal)
Supreme court (trial division)
County court of Victoria
Magistrates courts of Victoria
coroners court children’s court
What are some reasons for a court hierarchy?
THE ROLE OF VICTORIAN COURTS IN CRIMINAL CASES
- determine a criminal case
If the accused pleads not guilty, it is the role of the courts to determine whether they are guilty by managing and hearing criminal proceedings.
Guilt is determined by a magistrate at a hearing in the Magistrates’ Court for a summary offence
Guilt is determined by a jury at a trial in the County or Supreme Court for an indictable offence
A judge or magistrate oversees the trial or hearing
If the accused is charged with an an indictable offence, the case first goes to the Magistrates court for a committal proceeding. The final stage of this is a committal hearing.
as part of the court’s role in determining the guilt of an accused:
provide specialisation and expertise in the type of case it is hearing
manages the case - the judge and magistrates have significant powers of case management, which means they can give orders and directions to the parties
hears appeals - certain Vic courts have the power to hear appeals following a guilty verdict. An appeal may be made in relation to conviction, sentence, or point of law. - Impose a sanction
If an accused pleads guilty, or the magistrate or jury finds the accused guilty, then the court sets a date for a plea hearing.
At a plea hearing, both parties make submissions about the facts of the case and the offender’s circumstances that they believe should be taken account into sentencing the offender.
The judge then hands down a sanction, and in higher courts, a judge normally provides a written judgement about the sanction, which can be made available to the public at a later date.
What is the criminal jurisdiction of the Victorian courts?
When a court is hearing a case for the first time, it’s operating in its original jurisdiction. When a court is hearing an appeal, it is operating in its appellate jurisdiction
What is jurisdiction?
Jurisdiction: the right or the power of a court to apply the law and hear cases. There are two types: original jurisdiction and appellate jurisdiction.
Jurisdiction of the Victorian courts
Victorian court Magistrates’ Court
Original jurisdiction
Summary offences
Indictable offences heard summarily Committal proceedings
* Bail and warrant applications Indictable offences except treason, murder, attempted murder, certain conspiracies
County Court
Supreme Court
Serious indictable offences
(Trial Division) Supreme Court (Court of Appeal)
No original jurisdiction
Children’s Court
Coroners Court
Offences committed by children 10-17 years of age (except for certain offences) Investigation of deaths and fires
Appellate jurisdiction
No appellate jurisdiction
From the Magistrates’ Court on a conviction or sentence (unless the Chief Magistrate decided. the case)
From the Magistrates’ Court on a point of law. (unless the Chief Magistrate decided the case) All appeals from the County Court or the Supreme Court (Trial Division) * From the Magistrates’ Court if the Chief Magistrate decided the case.
No appellate jurisdiction.
No appellate jurisdiction.
What are the strengths of courts in resolving criminal cases
Judges, juries and magistrates are impartial referees who decide cases (including, in relation to magistrates and juries, whether a person is guilty) based on fact and law. They do not make decisions based on what they think happened or based on their own personal biases or prejudices.
Because of the court hierarchy, judges and court personnel are specialised, which helps to ensure fairness and expertise in the way that cases are managed.
Formal court processes, the way in which cases are managed, and rules of evidence help to ensure procedural fairness by allowing an accused person to present their case and rebut the other party’s case.
The court hierarchy allows for a party to appeal a case.
What are the Weaknesses of courts in resolving criminal cases?
The courts and the way they decide cases are difficult to understand for accused people, particularly those who are not represented, or those with little to no education.
Without legal representation, which can be expensive, a party may be disadvantaged by representing themselves, as they will not be equal to a party with legal representation.
The formalities of the court process can result in parties feeling stressed, intimidated or nervous.
The right to appeal is not automatic in many cases, e.g. the Court of Appeal needs to give leave (permission) for an offender to appeal a decision, and the appeal process is difficult without a lawyer.
When are the juries used?
Criminal juries are used in the original jurisdiction of the County and Supreme Court.
They are never used in the Magistrates’ Court and are not used appeals.
What is the composition of the jury?
Jury of 12 is compulsory in criminal cases heard in County and Supreme Court where accused pleads not guilty.
Individuals over the age of 18 who are enrolled to vote are qualified and liable for jury duty service. Selected at random and sent a form to determine if they are eligible.
WHO CAN/CANNOT SIT ON A JURY PANEL?
Some people are disqualified from being a juror because of past history e.g. if you have served more than 3 year term of imprisonment, if you are currently on bail or on remand and people who are declared bankrupt.
Some people are ineligible because of a particular characteristic or their job. e.g. lawyers, judges, magistrates, police officers, members of parliament, people who cannot speak or communicate in English adequately or have a physical disability that would mean they are incapable of performing service
Some people may be excused because of circumstances that make it difficult for them. E.g. poor health/illness, people who live more than 50km away from Melbourne, financial hardship, carers, advanced age
what is challenging a jury and what are the rules?
Both parties in the case have the right to challenge (object to) people on the jury panel.
There are no limits for number of challenges if there is a good reason (challenges for cause)
There is a limit of three challenges for no reason. (peremptory challenges)
Both parties are given limited information about the jurors, including jurors name and their occupation
What are the roles of a criminal jury?
listen to all the evidence
concentrate during the trial
piece the evidence together and decide whether the accused is guilty or not guilty
It is the judges role to explain the law to the jury. The judge also gives direction to the jury.
There are many laws that have been put in place to reduce the complexity of the directions.
The jury must listen carefully and come to a unanimous verdict. (12/12 must agree). If not possible the judge may allow for a majority verdict (11/12).
If majority verdict is not reached, then it is a hung jury and the accused can be tried again at a later date.
What are the strengths of the jury system?
Jurors are independent and impartial - and in particular, they are independent of the legal and
political system - thus ensuring equality and fairness in their decision.
The jury system allows the community to be involved in the justice system. This increases the confidence that the community has in the system, and ensures that the verdict reflects the values of the community.
The jury system ensures fairness by requiring the jury to deliberate based on the evidence and facts, and not on their own independent research or investigations. The jury system spreads the responsibility for making a decision. Therefore, the decision is more likely to be fair and correct than if it was made by one person (a judge). The jury system reflects community values and brings a common-sense approach to decision-making to the court
What are the weaknesses of the jury system?
Jurors do not give reasons for their decision, and deliberations occur behind closed doors, so some may question whether the decision has been made based on the facts and the evidence.
The task is difficult, particularly where there is complicated evidence or a significant amount of evidence. It has been questioned whether ordinary members of the public can understand the evidence and come to the right decision. A jury trial may result in delays because legal terms have to be explained to the jury and the judge must give directions to the jury.
Jurors may have biases that may play a role in their deliberations, even if they are not aware of those biases.
Not all community members are able to be part of the jury, because they may be disqualified or ineligible, or they may he excused
