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Legal Studies U3/4 > U3, AOS1B > Flashcards

U3, AOS1B Flashcards

1
Q

Victorian court hierarchy

A

Supreme Court (Court of Appeals) → Supreme Court (Trial Division) → County Court → Magistrates’ Court

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2
Q

Original jurisdiction

A

Power of a court to hear a case for the first time

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3
Q

Appellate jurisdiction

A

Power of a court to hear a case that is being reviewed or challenged from a lower court

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4
Q

Grounds for appeal

(On a question of law, a conviction, the sanction imposed)

A
  • On a question of law – believed law has been applied incorrectly. For both parties.
  • A conviction – challenging the verdict and sanction imposed. Only for the offender.
  • The sanction/sentence imposed – challenging the length of the sentence (either too lenient or too severe). For both parties.
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5
Q

Original and appellate jurisdiction of the Magistrates’ Court

A
  • ORIGINAL → summary offences, indictable offences heard summarily, committal proceedings, bail and warrant applications
  • APPELLATE → none

NOTE: committal proceedings are pre-trial discussions where a plea is decided and the strength of the evidence is examined to see if a full trial is necessary.

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6
Q

Original and appellate jurisdiction of the County Court

A
  • ORIGINAL → indictable offences (non-serious, i.e. armed robbery, fraud offences)
  • APPELLATE → from the Magistrates’ Court on conviction or sentence.
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7
Q

Original and appellate jurisdiction of the Supreme Court (Trial Division)

A
  • ORIGINAL → serious indictable offences (i.e. murder, attempted murder, certain conspiracies, coorperate offences)
  • APPELLATE → from the Magistrates’ Court on questions of law.
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8
Q

Original and appellate jurisdiction of the Supreme Court (Court of Appeals)

A
  • ORIGINAL → no original jurisdiction
  • APPELLATE → from the County Court and Supreme Court. From the Magistrates’ Court where the chief Magistrate decided the case.
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9
Q

Specialisation

As a reason for the Victorian court hierarchy

A
  • Refers to the areas of expertise that courts develop and that the personnel have expert knowledge in.
  • Important in preventing an overflow of cases into a particular court, impacting the ability of cases to be heard quickly.
  • i.e. the Magistrates’ Court is more familiar with summary offences that need to be dealt with quickly, committal proceedings, and dealing with self-represented accused people.
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10
Q

Appeals

As a reason for the Victorian court hierarchy

A
  • If there are grounds for appeal, a party who is dissatisfied with a decision in a criminal case can take the matter to a higher court to challenge the decision.
  • The party who appeals is known as the appellant, and the other party is the respondent.
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11
Q

Strengths and weaknesses of the court hierarchy

Task word: discuss

A
  • Strengths
    1. Specialisation in each individual courts allows faster, more efficient processes or resources based on the cases they hear.
    2. Allows appeals to be made by both parties if there is an error in the original decision.
  • Weaknesses
    1. The many different courts can be confusing for some i.e. people charged with an indictable offence, where the case will involve both the magistrates’ court (for a committal proceeding) and one of the higher courts (for the trial).
    2. Offenders need to establish grounds for appeal. This can restrict the ability of self-represented accused people to access the appeal hierarchy, who may struggle to formulate grounds for appeal. (F)
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12
Q

Why legal practitioners are needed

A
  • Self-represented people may lack the skills and experience to navigate the criminal justice system (i.e. plea negotiations) and test the evidence (i.e. examination of witnesses).
  • Self-represented accused people cannot be objective in decision-making (i.e. overly invested or emotional about the outcome, cannot assess risks and facts of the case).
  • It avoids a situation where the accused is directly questioning witnesses, which can risk a victim being re-traumatised.

Note: courts and judges cannot advocate on the behalf of a self-represented person, only assist them.

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13
Q

When might a court order for legal representation?

Including the name of the statute

A
  • The Criminal Procedure Act 2009 (Vic) gives the courts power to adjourn a trial for serious offences until legal representation from VLA has been provided. The accused has the burden of proof to prove to the court that they would:
    • Not be able to receive a fair trial without legal representation
    • Not be able afford to pay for their own lawyer
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14
Q

Why might a court order for legal representation?

A
  • To ensure a fair trial
  • To avoid a successful appeal and possible acquittal for the accused person.
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15
Q

Strengths and weaknesses of legal practitioners

Task word: discuss

A
  • Strengths
    1. They are experts who can help with navigation of the criminal justice system. (i.e. conducting opening and closing addresses, where there are rules about what they can or cannot say).
    2. They have objectivity in decision-making, such as whether to accept an agreement in a plea negotiation.
    3. They can prevent delays that may arise when self-represented accused people need more time to understand processes.
  • Weaknesses
    1. Skill and experience may vary, which may impact on the quality of the legal services.
    2. Not always affordable. Self- represented accused people do not have the necessary skills, experience or objectivity to be able to make the right decisions, so there may be a risk that they do not get a fair trial.
    3. Legal representation alone may not assist accused people who cannot understand English or those suffering trauma. Therefore, more support may be needed.
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16
Q

Factors affecting principles of justice

A
  • Costs (i.e. of legal representation)
  • Time (i.e. court delays)
  • Cultural differences (i.e. language barriers, culture)
17
Q

Costs of legal representation

A
  • The greatest financial impact tends to be on the accused.
  • Although everyone has the right to legal representation, not everyone can afford it.
  • An accused who cannot afford a lawyer may apply to VLA, a CLC, or a pro bono lawyer (but this does NOT guarantee representation).
18
Q

Measures to address costs

Including the PoJs affected

A
  • The provision of free legal aid through VLA and CLCs. (A)
    • However, due to increased demand and financial constraints (i.e. service gap), a large part of the community is not eligible for legal aid by VLA and CLCs. (A/E)
  • Adjustment of processes in court to help self-represented parties. (A/F)
  • Use of committal proceedings to filter out ‘weaker’ cases for indictable offences; saving resources (F)
  • Use of plea negotiations to resolve criminal cases (F)
19
Q

Time; court delays

A
  • Most criminal cases involve gathering evidence, locating and interviewing witness, determining what happened and deciding the charges.
    • The more complicated a case is the longer it may take to be ready for trial.
  • County Court cases have been estimated to take between 14 and 16 months to be ready for trial.
  • The COVID-19 pandemic caused a backlog of cases waiting to be heard.
20
Q

Measures to address delays

Including the PoJs affected

A
  • The use of plea negotiation (F)
    • Achieving an early guilty plea → no need to go to trial.
  • During the COVID-19 pandemic, the Victorian Government introduced temporary judge-alone trials (if the accused consented). (F/A)
  • Investment into digital technology allows for remote hearings to take place, which helps to reduce the backlog. (E/A)
21
Q

Cultural differences for First Nations peoples

A
  • Language barriers - Some words used by Indigenous people have different meanings
  • Direct questioning - It is polite to settle group agreement through discussion and storytelling
  • Body language - Direct eye contact is seen as disrespectful (rather than unreliable)
  • Cultural taboos - It is taboo to mention the names of deceased peoples, or gender-based knowledge
  • Lack of understanding of court proceedings
22
Q

Cultural/language barriers

A
  • For Australians who speak EAL:
    • Affects understanding of documents, following of court procedures and legal terminology
    • Victims may also struggle to understand their rights or the questions being asked of them.
  • Under the Human Rights Charter, a person has the right to assistance of an interpreter if they cannot understand or speak English.
23
Q

Measures to address cultural differences

Including the PoJs affected

A
  • The Koori Court aims to limit the difficulties faced by First Nations peoples. (E/A)
    • Accused must plead guilty (as it is only a sentencing court); cannot be a serious indictable offence. (A)
  • The provision of free interpreters helps those accused with a crime to still understand the processes happening around them. (E)
    • Access to an interpreter can vary greatly from court to court. (A)
  • Information provided both online and in-person from VLA and CLCs is provided in many different languages. (E/A).
24
Q

Who are the key personnel in a courtroom?

A
  • The judge (i.e. magistrate), the jury, the parties
  • Each have specific functions to perform in order to ensure the principles of justice are upheld and that each of the court processes is followed at all times.
25
Q

The judge

A
  • The judge in a criminal case is an individual appointed to
    conduct trials and resolve legal disputes in court.
26
Q

What are the roles of a judge

A
  • To act impartially
  • To manage the trial or hearing
  • To decide/oversee the outcome of the case
  • To sentence an offender
27
Q

Describe the 4 roles of a judge

To act impartially, manage the trial or hearing, decide/oversee the outcome of the case, sentence an offender

A
  • Act impartially
    • They must be unbiased and cannot favour a party
  • Manage the trial or hearing
    • They supervise and control the case to ensure that correct court procedure is followed
    • They make decisions during the trial (such as permitting or excluding evidence)
  • Decide or oversee the outcome of the case
    • In summary offences → the magistrate decides the verdict. They need to listen to the evidence, decide whether the accused is guilty, and refer them for sentencing.
    • In indictable offences → the judge does not decide the verdict, they assist the jury in understanding their job and the facts of the case to make an educated decision (including the laws).
  • Sentence an offender
    • During a plea hearing (after an accused pleads/is found guilty), parties make submissions about sentencing.
    • The judge or magistrate has the role of handing down the sentence on the same or a different day. They must comply with the Sentencing Act 1991 (Vic) and any relevant laws about the offence.
28
Q

Strengths and weaknesses of a judge

Including PoJs affected

A
  • Strengths
    1. They stay impartial as they cannot overly interfere in the trial (only oversee) and must remove themselves if they aren’t impartial (F)– this means no party is advantaged or disadvantaged (E).
    2. Managing the hearing process means rules of evidence and procedures are followed, so that both parties have an opportunity to present their case (F).
    3. Can adjust processes to assist self-represented accused people (A/F).
  • Weaknesses
    1. Risk of actual or apprehended bias (i.e. when they are fatigued), which affects decision-making (F).
    2. Lack of diversity in judges/magistrates, affecting how comfortable accused people feel in the courtroom.
    3. Cannot overly-interfere to help self-represented accused people (A/F).
29
Q

The jury

A
  • The jury in a criminal case consists of 12 members of the public who are randomly selected to listen, decide the facts, and deliver the verdict at the end of the trial.

A jury is only selected for trials in the County Court and the Supreme Court (Trial Division). There is no jury in the Magistrates’ Court. Only if th accused pleads not guilty.

30
Q

What are the roles of the jury

A
  • To be objective
  • To listen to and remember evidence
  • To understand directions and sum it up
  • To deliver a verdict
31
Q

Strengths and weaknesses of the jury

Including PoJs affected

A
  • Strengths
    • Achieving fairness:
      • They are randomly picked; do not have any preconceived notions about/connections to the parties involved
      • They must decide on facts only; cannot conduct their own research.
      • Collective decision making can reduce possibility of bias; personal bias can be identified by group
    • Juries involve the community; can represent the community’s values.
  • Weaknesses
    • They do not need to give reason for their decision so unconscious biases can still be present (F)
    • Can result in further delays in trials (F/A)
    • Some are ineligible for a jury (or excused). Therefore, it is possible that not everyone in a community is represented. (A/E)
32
Q

The parties

A
  • The parties (the prosecution and the accused) have control over how the case will run, but must always comply with the rules of the court and orders of the judge.
33
Q

?

What are the 3 roles of the prosecution?

A
  • Disclose information to the accused
    • Such as evidence to be used against them and material that may assist their case.
    • Any relevant convictions of prosecution witnesses, which can assist the accused when they cross-examine the witness to disprove their credibility.
  • Participate in the trial or hearing
    • Presenting their opening address (which outlines their case to help the court and jury understand the issues involved), present evidence that supports the case, cross-examine the witnesses, and make a closing address (which should be fact-based).
  • Make submissions about sentencing
    • They inform the court about laws that apply during sentencing
34
Q

?

What are the 2 roles of the accused?

A
  • Participate in the trial or hearing
    • Present their opening address, present evidence to support their case, call witnesses, cross-examine the witnesses, and make a closing address (free from emotion and based on the evidence).
  • Make submissions about sentencing
    • The aim of the offender, and their legal team, is to obtain the least possible sentence available.
    • They cannot mislead the court, but they should provide mitigating factors.
35
Q

Strengths and weaknesses of the parties

A
  • Strengths
    • They can challenge evidence. The accused cannot change witnesses without notice to the prosecutor, whereas the prosecutor must disclose all relevant matters to the accused.
    • Both parties are given the opportunity to present their case (F); e.g. cross-examine witnesses, closing and opening addresses.
    • The accused has no obligation to do or say anything during the trial, not saying anything doesn’t presume guilt (F).
  • Weaknesses
    • Disclosure can sometimes be inadequate and delayed. Sometimes, the police wait to see what the defence requests rather than being upfront (F).
    • For self-represented parties, all the different processes may be difficult to understand (F/A).
    • The right to silence means that the truth may not always come out– may feel unjust for families and victims.

Legal Studies U3/4 (4 decks)

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