SAC 1

Question 1

fairness

Answer 1

fair processes and a fair hearing. having a case heard in an impartial, objective manner without fear or favour and ensures no discrimination. people should understand court processes and have to opportunity to present their case and rebut. a fair outcome requires that each individuals circumstances are considered.

Question 2

aspects that relate to fairness

Answer 2

time it takes for a case to go to court
legal representation for both parties
understanding the process and providing adequate assistance
laws and rules being properly applies
people treated impartially without fear or favour

Question 3

equality

Answer 3

being treated equally before the law with an equal opportunity to present their case, processes should be free from bias or prejudice. in vic the Charter of Human Rights and Responsibilities is aimed at protecting and promoting human rights

Question 4

aspects that relate to equality

Answer 4

judge and jury to decide in criminal cases
availability of legal representation
laws apply equally to all

Question 5

access

Answer 5

all people should be able to understand their legal rights and pursue their case. bodies and institutions that provide legal advice, education, information and assistance should be available to all. access to the criminal justice system is for all people including victims, their families, the accused and gen pop

Question 6

aspects relating to access

Answer 6

legal advice and assistance
the ability to understand legal rights and processes
availability of courts
range of means available when dealing with criminal cases like plea negotiations

Question 7

summary vs indictable offences

Answer 7

summary offences are minor criminal offences that are heard in the magistrates court in front of a magistrate. there is no jury or judge. whereas an indictable offence is a serious criminal offence where if an accused pleads not guilty a trail takes place in the county or Supreme Court in front of a judge and jury

Question 8

indictable offences heard summarily

Answer 8

serious criminal offences that can be heard in the magistrates court as summary offences if the accused agrees. indictable offences punishable by less that 10 years imprisonment can be heard in the magistrates court

Question 9

burden of proof

Answer 9

the burden (onus) of proof refers to the responsibility of a party to prove the facts of a case. the burden to prove a case lies with the party brining the case to a court, in a criminal case this is the prosecution and the plaintiff in a civil case. the burden of proof can be reversed for instance if the accused pleads self defence they are required to provide the evidence to support this

Question 10

standard of proof

Answer 10

refers to the strength and evidence required to prove a case. in a criminal case this is beyond a reasonable doubt which means that if a reasonable person listened to the evidence and if all that evidence was to be believed there would be no other logical conclusion except that the accused is guilty

Question 11

presumption of innocence

Answer 11

every person accused of a crime is presumed to be innocent until they have gone before a court of law and been found guilty beyond a reasonable doubt. It is a guarantee that if a person is accused of a crime they will be treated, as far as possible, as innocent until proven guilty. it is upheld through the high standard of proof, through bail

Question 12

rights of the accused

Answer 12

only available to people, not companies and outlined in the human rights charter (mostly)
right to be tried without unreasonable delay
right to a fair hearing
right to a trial by jury

Question 13

right to be tried without unreasonable delay

Answer 13

right of an accused. in the Human Rights Charter it states that a person who is arrested or detained on a criminal charge has this right and it means that they are entitled to have their case heard in a timely manner and delays should only occur if they are considered reasonable. this right with ‘without discrimination’ so regardless of any personal factors. if the accused is under 18 the trial should be held ‘as quickly as possible’

Question 14

right to a fair hearing

Answer 14

right of an accused. HRC entitles a person charged with a criminal offence to have the charge decided by:

1. a competent, independent and impartial court
2. a public and fair hearing. this allows the community to see if the laws are applies properly and processes are fair

Question 15

right to trial by jury

Answer 15

right of an accused, protected by Australian constitution rather than HRC if it is a commonwealth indictable offence. for vic indictable offences the Criminal Procedure Act requires a jury to be empanelled where an accused has pleaded not guilty to an indictable offence

Question 16

rights of victims

Answer 16

Victims Charter act 2006 which recognises the impact of crime on victims and aims to minimise the likelihood of secondary victimisation. rights are
right to give evidence as a vulnerable witness
right to be informed about the proceedings
rights to be informed of the likely release date of the accused

Question 17

right to give evidence as a vulnerable witness

Answer 17

sometimes a victim has to give evidence in a case. the law recognises that in particularly sensitive cases giving evidence in a formal courtroom may make the victim uncomfortable, therefore jeopardising evidence and adding to trauma. the law provides these people with protections for when they give evidence:

• alternative arrangements can be made for a witness to give evidence in certain cases
• a declaration that the person is a protected witness
• special arrangements for ppl under 18 or with cognitive impairment

Question 18

1. alternative arrangements

Answer 18

can be done for sexual offences, family violence or particularly obscene or threatening public offences. includes:

• witness giving evidence through a closed circuit tv
• screens used so the witness cannot see the accused
• only certain persons allowed in court
• informal court

Question 19

complainant

Answer 19

a person against who an offence is alleged to have been committed, (a person who has complained to the police)

Question 20

2. protected witness

Answer 20

a person who is to give evidence in a sexual offence or family violence offence case and is either the complainant, a family member of the complainant or accused or any other witnesses the court declares so. Being a protected witness means that they must not be cross-examined by the accused and must be done by the accused’s legal rep, if they do not have one then court must order VLA to provide one

Question 21

3. special arrangements for persons under 18 or with cognitive impairment

Answer 21

available in criminal proceedings for, sexual offences, indictable offence involving assault or injury, offences involving minor assaults where those assaults relating to one of the above offences. these witnesses are allowed to give they examination-in-chief via audio or visual recording which will be provided to the accused who will have time to view it. additional protections are available if the offence is sexual. this included giving evidence in a special hearing meaning the accused is not in the same room, the accused cannot see or hear the complainant during evidence is given, no unauthorised people in the courtroom

Question 22

4. improper questions

Answer 22

the evidence act given power to a court when a vulnerable witness is being questioned to disallow improper questions, meaning questions that are confusing, harassing, intimidating, offensive of humiliating.

Question 23

define vulnerable witness

Answer 23

any person under 18, a person with cognitive impairment or intellectual disability, or a witness whom the court considers vulnerable e.g Witnesses to sexual assault cases, (trauma and injury significant)
Witnesses within family violence cases (trauma and injury significant)

Question 24

right to be informed of the proceedings

Answer 24

right of a victim. the victims charter recognises that persons adversely affected by crime are entitled to certain information about the proceeding and about the criminal justice system. the charter requires investigatory agencies, prosecuting agencies and victims service agencies to provide clear timely and consistent information about support services, possible compensation entitlements and legal assistance available. it also requires an investigatory agency to inform a victim as reasonable intervals about the progress of the investigation (victim can chose not to receive info)

Question 25

what information must a prosecution give a victim

Answer 25

- details of the offences charged against the person - how the victim can find out the date, time and place of hearing of the charges - if no offence is charged the reason why - the outcome of the criminal proceeding including the sentence - details of any appeal

Question 26

the right to be informed of the likely release date of the accused

Answer 26

right of a victim. any person who is a victim of a criminal act of violence may apply to be included on the victims register. a person on the register may receive certain information about an offender who has been imprisoned including their likely release date and be informed of their releases at least 14 days prior. other rights of victims on the victims register is to know the length of the sentence, if the offender escapes and the right to make a submission if the offender is to be released on parole

Question 27

agencies that represent accused

Answer 27

the legal system can be extremely difficult to understand without legal help. the high court ruled that if an accused, through no fault of their own is not represented then they have the right to seek it based on the right to a fair trial, if they can't afford legal representation then government agencies like VLA and victorian CLCs may be able to help them

Question 28

Victorian Legal Aid

Answer 28

is a government agency that provides free legal advice to the community and low-cost or no-cost legal representation for people who can't afford it. its role is to: - provide legal aid in the most effective, economic and efficient manner - manage its resources and make legal aid available to the community at reasonable cost - pursue innovative means to provide legal aid - to aid accused people

Question 29

types of legal aid from VLA

Answer 29

- free legal info: available to everyone, online - free legal advice: over the phone, in person or video, available to those who need it most e.g children, disabled - free duty lawyer services: duty lawyer is person at court on a particular day who can help people ( only is mag and child court) fact sheets available to everyone, legal advice to people who pass income test, legal representation if income test satisfied and be facing a serious charge or be disabled, non-english etc. grant of legal assistance: may be able to grant legal assistance but only if they satisfy the means test (don't earn over $360 p/week) all grants are capped and the benefit to the public is weighed

Question 30

Victorian community legal centres

Answer 30

independent organisations who provide free legal assistance for those who can't access other legal services. two types of CLCs 1. generalist - provide brand legal services to people in particular geographical area 2. specialist - focus on a particular group of people or area of law. CLC's role is to - provide information, legal advice and minor assistance - provide duty lawyer assistance - provide legal casework services including representation and assistance Like VLA's focus on those who need it most. they also provide help to victims of crime and their families

Question 31

types of legal aid from CLC's

Answer 31

- basic legal info: mainly online, provided day-to-day - initial legal advice: prelim assistance such as completing forms, free legal advice no appointment - duty lawyer assistance: provide advice on urgent matter that will completed in one day - legal casework: very rarely a criminal matter will be taken on and each CLC has certain eligibility and will only take it on if that person has received a grant of legal assistance from VLA

Question 32

committal proceedings

Answer 32

is a pre-trail procedure that takes place in the magistrates court where an accused has been charged with one or more indictable offences and has pleased not guilty. the committal proceeding involves a number of stages and preliminary hearings which act as a filtering process to test the strength of the prosecutions case against the accused and to give the accused the opportunity to understand the case and cross examine. after a committal proceeding and an accused is committed all docs are transferred t the DPP who file an indictment in the supreme or county court. an accused can plead guilty at any time and therefore will be listed for a plea hearing in those courts

Question 33

purpose of committal proceedings

Answer 33

- to see whether a charge for an indictable offence is appropriate to be heard and determined summarily - giving the accuses an opportunity to hear or read the evidence and cross examine - allowing the accused to put forward a case at an early stage if they choose - allowing the accused to properly prepare and present a case - making sure the issues to be argued are properly defined - outlines in sec 97 of criminal procedures act

Question 34

committal hearing

Answer 34

main and final stage of committal proceeding where the accused can question the prosecutions witnesses and make submissions about the charges, after all evidence and submissions the Magistrate decides whether or not to commit the accused. if the magistrate finds there is sufficient evidence of sufficient weight to support a conviction then the accused is committed to stand trial and either released on bail or held in remand until trial. if the magistrate finds there is not sufficient evidence to support a conviction then the accused is discharged and allowed to go free, if further evidence is found in the future an accused can be brought before the court again

Question 35

plea negotiations

Answer 35

encourage early determination of a case. are discussions between prosecutor and accused about the chargers against the accused. can be about summary or indictable offences and can result in a agreement being reached about what charges the accused will plead guilty to. these negotiations are conducted without prejudice and any offers made cannot be used against them should the case go to trial or a hearing. agreements reached may be that - the accused pleads guilty to fewer charges - the accused pleads guilty to a lesser charge they do not determine the sentence as that is determined by the court when the accused pleads guilty, they can happen at any stage even after charges have been laid and the victim should be consulted but they do not decide

Question 36

purpose of plea negotiations

Answer 36

- to resolve a criminal case by ensuring a plea of guilty to a charge that adequately reflects the committed crime - to achieve a prompt resolution to a criminal case without cost, time, stress, trauma and inconvenience of a criminal trial or hearing

Question 37

appropriateness of plea negotiations

Answer 37

may only occur if in public interest and a number of factors are considered when deciding if plea negotiations are appropriate for a case including: - whether accused if willing to cooperate - strength of prosecutions case - whether accused is ready and willing to plead guilty - whether witnesses are reluctant or unable to give evidence - possibility of adverse consequences of a full trial - time and expense in a trial

Question 38

sentence indications

Answer 38

given by a court to the accused to leet them know what sanction is likely to be imposed on them, it is intended to give a broad idea the sentence they will get if they plead guilty at a certain point. given for summary or indictable offences. used to encourage a guilty plea to avoid full trial or hearing, the involve the court unlike plea negotiations. sentence indication can only be given if accused applies for one and can only be given once. if the court indicates it is not likely to impose a term of immediate imprisonment and the accused pleads guilty at first opportunity then the court must not impose a sentence of imprisonment. if accused asks for sentence indicator but pleads not guilty a different judge must preside over the case. the indication caps the maximum sentence allowed to be given if pleads guilty

Question 39

summary vs indictable sentence indicators

Answer 39

summary: can be given at any time by mag court, no need for prosecutors consent, indication whether sentence of imprisonment of sentence of another type is likely to be imposed. indictable: accused must apply, prosecutor must consent, indication on likelihood of immediate imprisonment

Question 40

appropriateness of sentence indications

Answer 40

depends on whether: - accused has applied - type of offence and court hearing the charges - whether there is sufficient information for the judge or mag to give an indication - strength of the evidence - nature of the offence (not appropriate for sexual offences)

Question 41

strengths of sentence indicators

Answer 41

can result in early determination of a case can save money and resources accused is not bound to accept the indication and plead guilty can minimise trauma, stress and inconvenience

Question 42

weaknesses of sentence indications

Answer 42

judge may not give one if requested for indictable offences the court only needs to indicate if it would impose a term of immediate imprisonment lack of transparency as the court is allowed to close a proceeding to the public during sentence indication

Question 43

strengths of plea negotiations

Answer 43

saves cost help with prompt determination saves victims trauma, inconvenience and distress agreement affects the criminality of the offence

Question 44

weaknesses of plea negotiations

Answer 44

can be seen as the accused being let off or getting a more lenient sentence can be seen as the prosecutor avoiding the need to prove the case BRD if negotiations do not succeed it may give unfair advantage to one side.

Question 45

strengths of committal proceedings

Answer 45

save time and resources allows accused to be informed of prosecutions case gives prosecution chance to withdraw some charges or combine some tests strength of prosecutions case

Question 46

weaknesses of committal proceedings

Answer 46

can be complicated and increase risk of unfair outcome legal aid can be expensive add to delay of trial

Question 47

who is a victim

Answer 47

victims are broadly categorised as those who: Have suffered as a direct result of a criminal offence (primary victim) A family member of a person who has died as a result of a criminal offence A family member of a person under 18 years of age or of mental impairment, and that person has suffered as a direct result of a criminal offence A child under the age of 16 who has been groomed for a sexual offence, and their family

Question 48

entitlements of a victim

Answer 48

Information about the proceeding Information about the criminal justice system This includes timely, clear and consistent information from police, DPP and Victims Commissioner) about: Support services Possible compensation entitlements, and Legal assistance available Importantly, it requires that the Victoria police inform victims, at reasonable intervals, about the progress of the investigation.