U3, AOS1B

Question 1

Victorian court hierarchy

Answer 1

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

Question 2

Original jurisdiction

Answer 2

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

Question 3

Appellate jurisdiction

Answer 3

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

Question 4

Grounds for appeal

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

Answer 4

• 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.

Question 5

Original and appellate jurisdiction of the Magistrates’ Court

Answer 5

• 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.

Question 6

Original and appellate jurisdiction of the County Court

Answer 6

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

Question 7

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

Answer 7

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

Question 8

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

Answer 8

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

Question 9

Specialisation

As a reason for the Victorian court hierarchy

Answer 9

• 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.

Question 10

Appeals

As a reason for the Victorian court hierarchy

Answer 10

• 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.

Question 11

Strengths and weaknesses of the court hierarchy

Task word: discuss

Answer 11

• 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)

Question 12

Why legal practitioners are needed

Answer 12

• 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.

Question 13

When might a court order for legal representation?

Including the name of the statute

Answer 13

• 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

Question 14

Why might a court order for legal representation?

Answer 14

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

Question 15

Strengths and weaknesses of legal practitioners

Task word: discuss

Answer 15

• 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.

Question 16

Factors affecting principles of justice

Answer 16

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

Question 17

Costs of legal representation

Answer 17

• 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).

Question 18

Measures to address costs

Including the PoJs affected

Answer 18

• 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)

Question 19

Time; court delays

Answer 19

• 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.

Question 20

Measures to address delays

Including the PoJs affected

Answer 20

• 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)

Question 21

Cultural differences for First Nations peoples

Answer 21

• 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

Question 22

Cultural/language barriers

Answer 22

• 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.

Question 23

Measures to address cultural differences

Including the PoJs affected

Answer 23

• 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).

Question 24

Who are the key personnel in a courtroom?

Answer 24

• 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.

Question 25

The judge

Answer 25

* The judge in a criminal case is an individual appointed to **conduct trials** and **resolve legal disputes** in court.

Question 26

What are the **roles** of a judge

Answer 26

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

Question 27

**Describe** the 4 **roles** of a judge ## Footnote To act impartially, manage the trial or hearing, decide/oversee the outcome of the case, sentence an offender

Answer 27

- **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.

Question 28

Strengths and weaknesses of a judge | Including PoJs affected

Answer 28

- 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)**.

Question 29

The jury

Answer 29

* 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. ## Footnote 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.

Question 30

What are the **roles** of the jury

Answer 30

* To be objective * To listen to and remember evidence * To understand directions and sum it up * To deliver a verdict

Question 31

**Strengths and weaknesses** of the jury | Including PoJs affected

Answer 31

- 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)**

Question 32

The parties

Answer 32

* 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.

Question 33

# ? What are the 3 **roles** of the prosecution?

Answer 33

- **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

Question 34

# ? What are the 2 **roles** of the accused?

Answer 34

- **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.**

Question 35

Strengths and weaknesses of the parties

Answer 35

- 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.