U3 AOS1B Flashcards
(104 cards)
1
Q
define jurisdiction
A
legal authority of a court to decide legal cases
2
Q
original jurisdiction
A
power of a court to hear a case for the first time
3
Q
appellate jurisdiction
A
power of a court to hear a case on appeal
4
Q
leave to appeal
A
formal permission to appeal the outcome of a case in a higher court
5
Q
reasons for a court hierarchy
A
specialisation
appeals
6
Q
what is specialisation
A
the level of expertise gained by the judge/ mag which is developed from hearing the same matters repeatedly. This allows judges/mag to resolve disputes in a more consistent, efficient and fair manner
7
Q
what must be included when answering court hierarchy questions
A
reason
example
link explicitly to hierarchy
8
Q
link to hierarchy for specialisation
A
without a court hierarchy specialization couldn’t develop b/c the courts may not exist on the same level w/o specific jurisdiction. As they may be able to hear all types of matters, expertise would be limited
9
Q
link to court hierarchy for appeals
A
if the court hierarchy didn’t exist appeals couldn’t occur because no superior courts, if all on same level- mistakes couldn’t be corrected by senior/ experienced judges
10
Q
specialisation- court of appeals
A
-only court that can hear appeals from county/ supreme TD
-has expertise on sentencing principles and determining whether application of flaw has been correctly applied at trial
11
Q
specialisation- SCTD
A
-hears most indictable offences
-judges have developed specialisation in those matters inc the elements of each crime
-judges have expertise in jury matters, rules of ev and procedure
12
Q
specialisation- CC
A
-hears indictable offences (generally not involving a homicide)
-judges have developed expertise in those matters inc elements
-judges develop expertise in jury matters
-judges can hear appeals from mag court on sentencing
13
Q
specialisation- Mag
A
-hears summary offences + indictable offences heard summarily (need to be dealt w quickly and efficiently)
-committals
-warrants and bail applications
14
Q
appeals
A
legal process that a part who is dissatisfied w the outcome of their case and has a relevant reason, to seek a review of the courts decision by a higher court
-allows for fairness as mistakes can be corrected
15
Q
grounds for appeal
A
q of law- law has not been followed (allowing inadmissible ev/ incorrect application of a statute)
appealing a conviction- burden/ standard hasn’t been met
appealing a sanction- on grounds of leniency or severity
16
Q
court hierarchy fairness strengths
A
skilled and knowledgeable judges ensure open and impartial processes
17
Q
court hierarchy fairness weaknesses
A
may not be able to appeal if they cannot afford fees
18
Q
court hierarchy equality strengths
A
all parties have right to appeal
19
Q
court hierarchy equality weaknesses
A
costs mean that appeals are not equally accessible to appeal
20
Q
court hierarchy access strengths
A
-enables appeals to occur which facilitates review of decisions
-cases are resolved in an efficient manner= minimized delays
21
Q
court hierarchy access weaknesses
A
- grounds for appeals necessary
-costs of legal rep for appeals
22
Q
judge
A
indep authority who presides over a trial, ensuring procedural fairness by overseeing all personnel and ev.
23
Q
magistrate
A
indep authority who presides over hearings in the Mag court for less serious matters such as summary offences, committal proceedings and some civil disputes
24
Q
what are the roles of the judge
A
manage the trial
direct the jury
determining the guilt of the accused
sentencing the offender
25
manage the trial
-ensuring that court procedures are followed- both parties have same op to present case
-asking clarifying qs of witnesses, calling new witnesses
-adjourning the trial to ensure that there is no disparity
-limiting the number of witnesses or topics which witnesses can be questioned abt
-limiting examination in chief and cross examination
-determining admissibility of ev- must be relevant and not hearsay
26
direct the jury
-giving directions to jury to ensure fair trial (informing jury that accused is not required to give ev, reinforcing application of law)
-explaining legal definitions to the jury (sop, key elements)
27
determining the guilt of the accused
in Mag court or Judge only trials
-based upon ev
28
sentencing the offender
-if accused is found guilty/pleads guilty, parties make submissiosn for sentencing
-judge must follow sentencing Act 1991
-factor in agg/mit factors/ VIS, to ensure procedural fairness
29
strengths of roles of judge
-indep impartial judge= trial conducted fairly w/o bias and according to rules of ev and procedure
-experienced professionals who are well versed in the law and court procedures= ensures rules and procedures are correctly applied so both parties receive an equal opp to present case
-can apply court rules to protect victims
-can explain points of law to jury members= better participation
-they can adjourn a trial in order for legal rep to be provided if they see one party is highly disadvantaged
30
weaknesses of the roles of the judge
-can only explain court procedures and legal terminology to parties, no additional legal advice= may be unfair for self-rep parties
-while they are impartial- they are still subject to personal bias
-reliant on parties presenting all ev.
-lack of diversity in judges
31
what is a jury
a group of randomly selected people from electoral roll who are required to deliver a verdict in a trial based upon the ev presented to them in court
32
what can jurors not do
-conduct personal research
-discuss trial w anyone else
-view extraneous info abt the case
-have relations w either party
33
who is ineligible for jury
those who have committed indictable offences
lawyers
police officers
judicial officers
34
what are the roles of the jury
remain objective
listen and consider evidence presented
determine a verdict
35
remain objective
-remain indep adn unbiased towards both parties
-potential jurors who cannot remain impartial, due to prior connections or other factors must alert to the court to excuse themselves
36
listen and consider the ev. presented
-be alert during trial
-take notes if needed to keep track of info during trial
-listen to directions given by judge inc explanations of key legal concepts
-apply law
-participate in deliberations
37
determine a verdict juries
-consider only ev presented to reach conclusion
-listen to other juries
38
strengths of the jury
-protects democracy as verdict reflects society's values- fair trial as views of community are accounted for
-12 ppl from community upholds transparency and accountability as members of court act in professional manner and provide insight for comm
-all accused who plead not guilty to ind offence are entitled to trial by jury
-ensures less legal jargon is used-promotes access
39
weaknesses of the jury
-used in a small proportion of criminal cases so effectiveness is limited
-cases can be complex and technical- difficult for ordinary person to fully understand
-not a true cross section of community due to ineligible/excused/disqualified
-causes delays as must be empaneled, ev and terms explained and deliberations , also risk of hung jury or mistrial
40
Who are the prosecution
Party that acts on behalf of Cth or state and brings criminal case to court
41
Who are the accused
The party who is charged with a criminal offence. Sometimes there could be two individuals (co-accused)
42
Roles of the prosecution
-give an opening and closing address
- calling witnesses
- present ev
-make submissions to court in relation to sentencing
43
Prosecution giving opening and closing address
-at start of trial- give opening statement to jury outlining charges of accused and evidence they intend to present
- at the conclusion of trial- provide statements summarising their arguments and why the accused is guilty beyond a reasonable doubt
44
Prosecution calling witnesses
-call all relevant witnesses not just those who will support their case and gain guilty verdict
- examination in chief
-cross examination
45
Prosecution present evidence
Present relevant and admissible evidence to prove guilt of accused beyond a reasonable doubt
46
Prosecution making submissions to court in relation to sentencing
If accused is founds guilty- make submissions to court re appropriate sanctions to impose
47
Roles of the accused
-enter a plea
-present ev and call witnesses
-present a defence
-attend court proceedings
48
Accused enter a plea
Must plead guilty or not guilty to charges against them. Any time prior to trial or during trial before verdict
49
Accused present evidence and call witnesses
- not required to present ev- no BOP and right to silence
-may chose to do so to disprove prosecution
50
Accused presenting a defence
-don’t have to
-self defence however BOP falls upon accused
51
Accused attending court proceedings
Required to attend to assist in the prep of their case
52
Strengths of the roles of parties
-both are provided w opp to present case
-no requirement to present evidence or a defence as POI upheld
-judges can provide general guidance such as explaining legal terminology and requirements of admissible ev
53
Weaknesses of the parties
-self rep parties may struggle to understand how to present legal arguments and ev against prosecution who has expertise
-silence or unwillingness to present evidence may be viewed as an admission of guilt
Accused may plead guilty bc don’t understand rights and don’t think they will present case in the best light
54
Need for legal rep leg
S197 of criminal procedures Act 2009 - court has pwr to adjourn trial until legal rep has been provided for the accused, if court is satisfied that accused will be unable to:
Have a fair trial without legal rep
Afford the full cost of private legal rep
55
Need for legal rep (solicitors and barristers)
Solicitors-
-advises clients abt legal matters
-prepares legal documents for trial
-communicates w other party’s legal rep
-researches relevant laws
- if required engages the barrister and briefs them to rep client in court
Barrister:
-making legal arguments
-q of witnesses
-summarising the case to the judge and jury
56
Reasons for legal rep
-ensure and accused understands legal proceedings
-help an accused receive a fairer outcome
-provide objectivity
-assist w the q of witnesses
57
Ensure accused understands legal proceedings
CPA 2009 sets out process of criminal proceedings in vic and w the assistance of legal rep and accused can understand:
-how a criminal proceeding is commenced
-committal proceedings
-how to submit a plea
-manner in which ev must be presented
-how to appeal a criminal conviction
58
Help an accused to receive a fairer outcome
Lawyer can help to build a compelling defence against accusations
-innocent accused is not wrongfully found guilty
-an accused could guilty receives an adequate sanction that in some cases may be less severe as a lawyer can argue that certain mitigating factors apply
-an accused can appeal their conviction or sentence if they feel they were wrongfully found guilty or inappropriately sentenced, as the appeals process can be complex and an accused may be unable to navigate it
59
Legal rep providing objectivity
-an accused person may struggle to view ev against them objectively
-legal practitioner can identify weaker or stronger points in prosecutions ev
-allows a stronger defence to be built w/o interference of emotions
60
Lawyers assisting w questioning of witnesses
Witnesses may include:
-victims
-another person w direct info about the crime
-expert witnesses
To be questioned by a person who committed an offence against u cna be extremely traumatic and emotional for victims
Accused may also struggle to q witnesses independently, as there are strict rules surrounding scope of q which may lead to irrelevant qs or infringement of rules of trial
61
Factors influencing CJS
cost
Time
Cultural differences
62
Impacts of cost within CJS
-obtaining legal advice (solicitors fees- to receive initial advice through reviewing the prosecutions evidence, plan which witnesses will be called and meet with witnesses before trial)
-barristers feels (300-1000per hour)
-witness fees (expert witnesses up to 395 per hour)
-delays
-cost to appeal (filing fees/ solicitors and barristers)
Recovering costs if acquitted or successfully appeal- if acquitted they may ask courts to award costs in favour if found not guilty- court may order prosecution to meet costs (may only cover some costs)
63
How are costs addressed
Access to CLA and CLCs:
-ongoing funding to ensure more locations and resources are provided
-strict income, means and merits criteria ensure most vulnerable individuals receive access
Committal proceedings:
-use of committals to filter out weaker cases
-also promotes early guilty plea to resolve matter faster
-decreased costs for accused
Plea negotiations:
-opp for accused to discuss w prosecution a plea to lesser or fewer charges
-promotes early resolutions
- decreases costs
64
Impacts of time in CJS
-court backlogs
-trial procedures
-collection of ev for convincing case
-judges giving directions to juries
-mistrials
-appeal judgements and sentences to be delivered
65
How time is addressed
Plea negotiations:
-allows accused to plead guilty
-efficient resolution of disputes
Judge alone trials
Use of tech:
-hearings can be attended remotely
-accused can remain in remand and attend online
-online Mag court program
66
What are cultural differences
Challenges that arise for individuals within criminal justice system due to cultural background
-asylum seekers and refugees
-migrants
-first nations Australian
67
Impacts of cultural differences on refugees and recent migrants
-eng is not the first language for recent migrants and refugees- difficult to give oral ev/ self rep parties may find it difficult to prepare their case and file court documents
- CJS is complex w legal jargon and some resources may not translated properly- could lead to confusion
-Indiv w limited comprehension of eng may fail to understand their rights, find it challenging to address jury, respond to qs in court- may lack comprehension to participate thoroughly in a plea
-recent refugees may mistrust the police and CJS depending on past experiences
68
Impacts of cultural differences- direct questioning
-giving oral ev is main method used to outline info to court- inappropriate for FN witnesses
-in many cultures FN, group discussion and long discussions are how disagreements are resolved
-FNP may avoid eye contact and remain silent more often as considered respectful however can be misunderstood as being non-cooperative and dishonest
69
Impacts of cultural differences- cultural taboos
-in FN cultures, considered taboo to speak of certain things such as names of deceased ppl or mention gender-based knowledge in front of other genders
-in some cultures, retelling of sexual abuse or domestic abuse can be considered a shame on family
70
How does Koori court address cultural differences
- aims to provide more FN offenders w access to culturally relevant sentencing that more effectively acts to reduce reoffending- informal and involves opportunities to tell story to elders and revive support from families
- cannot hear matters relating to sexual offences, fam violence or breach of an intervention order
71
How do interpreters address cultural differences
Available to all and onus is on courts
72
How does ev act address cultural differences
Establishes circumstances where evidence cannot be admitted to the courts due to accused or victims accounts being unreliable bc of language barriers
73
How are cultural differences addressed
Koori court
Interpreters
Evidence Act 2008
Legal info through VLA and CLCs
74
Define sanction
Penalty imposed by the court on an offender when they plead guilty or are found guilty of a court
74
Legislation for sanctions
Sentencing Act 1991
75
Rehabilitation
-to restore/support (adopts perspective that there is a reason/cause)
75
Examples of rehab
-educational classes in prison
-counselling or anger management
-therapy
-completion of workshops/ classes
76
Punishment
-to inflict pain/loss or an inconvenience to ensure offender is penalised proportionally and held accountable
-takes impact and nature of offence into account
-seeking retribution
77
Examples of punishment
Level 1- life imprisonment (murder)
Level 2- 25 yrs (manslaughter)
78
Deterrence
The act of discouraging an offender or other individuals from reoffending or committing similar crimes through criminal sanctions
Specific and general
79
Denunciation
To publicly condemn an offenders behaviour/ to show society’s disapproval
Highlight extent to which offender has violated moral and ethical standards of society
79
How are fines calculated
1 pu- $192.31
79
Factors for fines
Purpose court wishes to achieve
Aggravating and mitigating factors
Offenders ability to pay
79
Purpose of sentencing act 1991
Promote consistency
Provide fair and transparent procedures
Prevent crime and promote respect for law
79
Protection
To ensure that offender doesn’t pose significant risk to the welfare and safety of their victims and broader society
80
Examples of protection
-imprisonment
-CCO preventing offender from visiting certain places, a curfew or a bond payment that is forfeited upon contravention
80
Fines
Requires an offender to make a monetary payment as a penalty for a criminal offence
80
CCO
A non-custodial order by court that allows offender to remain within the community w certain conditions
81
When can CCO be imposed
-alongside fine or imprisonment
-punishable by 5 pu or more (disorderly conduct)
- judge believes fine is not appropriate
-offender agrees
82
Duration of a CCO
2/5yrs
83
CCO standard conditions
-not reoffending during duration
-not leaving vic without permission
-notify CCO supervisor if change of address
-comply w directions given by CCO
84
Additional CCO conditions
-completing up to 600 hours of community service
-abiding by a curfew
-undertake medical treatment of rehab programs for drug and alcohol addiction
-avoiding contact w a particular person inc an accomplice
-staying away from a particular place or suburb
-ankle monitoring
-not consume alc or attend licensed venues inc bars/ clubs
85
Imprisonment
-a sanction that removes an offender from the community and places them in prison for a given period
Can be concurrent (same time)
Or cumulative (one after another)
86
Parole
Early release of a prisoner after their minimum term is served which is subject to supervision and certain conditions
87
Conditions of imprisonment
-loss of personal freedom
-inability to see family and friends other than through visitation
-loss of income and job prospects
-programs within prison that aims to address cause of offending
-tafe
-work in kitchen or laundry
88
Aggravating factors
Facts, circumstances about the offender or the offence that tends to increase the offenders culpability and therefore likely to increase the severity of the sentence
89
Examples of aggravating factors
-whether crimes was planned/ premeditated
-hate crimes
-degree of brutality and cruelty, the offence was unprovoked or involved domestic violence
- victim was particularly vulnerable person
-offender had prior convictions
-offence took place while on bail or serving CCO
-committed in front of children
90
Mitigating factors
Decrease offenders culpability and may decrease sanction
91
Examples of mitigating factors
-genuine remorse
-result of provocation
-young offender
-traumatic personal history
-limited or no prior criminal history
-cooperating w police
-offender pleaded guilty early
-injury or harm caused by offence was not substantial nor was there a risk to any ppl
92
Guilty plea
A full admission of guilt by accused of an offence for which they have been charged
93
Sentencing discount
A reduction in offenders sentence that they receive for pleading guilty to an offence- court may have to state difference for transparency
94
Victim impact statements
Written or verbal statement made to court abt effect of offence on victim
-physical impacts
-emotional loss
-financial loss
-can use photos
Inform judge of severity
95
96
