Unit 3 AOS 1b Flashcards
1
Q
What is the Magistrate’s original jurisdiction?
A
All summary offences
Indictable heard summarily
Committal hearings
2
Q
What is the County’s original jurisdiction?
A
Most indictable offences, excluding murder, manslaughter
3
Q
What is the Supreme Courts original jurisdiction?
A
Serious indictable offences, like murder and manslaughter
4
Q
What is the County’s appellate jurisdiction?
A
Cases from the Magistrate’s court on the grounds of conviction or sentence
5
Q
What is the Supreme TD appellate jurisdiction?
A
Magistrate cases appealing on the point of law
6
Q
What is the Supreme Court of Appeals appellate jurisdiction?
A
Cases from both county and supreme on any 3 of the grounds of appeal
Magistrate if the chief magistrate was deciding the case
7
Q
What does specialization ensure
A
Cases are being heard by appropriate judges / judical resources with expert knowledge suited for that area of law
8
Q
What is specialization
A
The different levels of courts based off their jurisdiction on type of cases they hear
9
Q
Specialization example: Magistrate Court
A
Magistrate court deals with summary offences, expertise in this area of law
10
Q
Specialization example: Supreme TD
A
Supreme court deals with highly complex indictable offences, have expert knowledge to suit complex legal issued, evidence and high stakes
11
Q
What are Appeals
A
Appeals are a proccess that a party can undergo to have their case reviewed by a higher court if they are dissatisified with the outcome.
12
Q
What does appeals ensure?
A
Appeals ensure that mistakes are corrected
Without a court hiearchy appeals would be impossible
13
Q
Grounds for Appeals
A
- Point of law
- conviction
- Sentence
14
Q
Appeals example: Magistrate sentence
A
A party dissatisifed with their sentence in the magistrate court can appeal to the courty court on the grounds of sentencing and conviction
Magistrate to supreme on point of law
15
Q
(3) Evalute Specialisation : Strengths
A
Increases efficiency and effectiveness of the courts by assigning lower courts minor cases and assigning higher courts complex cases
Reduces delays
Each court has expert knowlegde in specific areas of law
16
Q
Evalute Specialisation : Weakness
A
Multiple streams of courts can confuse people
17
Q
Evalute Appeals : Strengths (2)
A
Mistakes can be corrected
People can openly participate in the C.J.S
18
Q
Evalute Appeals : Weaknesses (4)
A
Appeals are not always automatic - delays frequent
Can be rejected
increas in cost and delays
May appeal to delay justice
19
Q
Specialization achieves fairness
A
What? Achieves Fairness
How? Delegating cases to specific courts based on type of court
Why? This is fair because it means people can parpticipate in the C.J.S using the approriate judical resources to their case, making the courts open and impartial to each case.
20
Q
Specialization does not achieve access
A
What? Limited in achieving access
How? Involves multiple courts, can be confusing for some people
Why? This limits access because people lacking knowledge can’t pursue their case on an informed basis
21
Q
Appeals achieve fairness
A
What? Appeals achieve fairness
How? Having a higher court to continue pursuing their case if they believe their case was exposed to bias
Why? This is fair because it means if a case’s outcome was influenced by bias it can be amended, maintaining impartiality and allowing people to participate in the C.J.S
22
Q
Appeals reduce access
A
What? Appeals reduce access
How? Appeals increase the amount of delays and costs because of the amount of time spend in the C.J.S, and because the courts are already busy
Why? Increases the amount of cases in the C.J.S whcih increases delays and leads to less people being able to pursue their case in a timely manner
23
Q
Roles of Judge / Magistrate (4)
A
- Act impatrially
- Manage the trial or hearing
- Sentence an offender
- Oversee the outcome of the case
24
Q
Role of Judge/Magistrate: Act Impartially (3)
A
Ensure unbiased and fair treatment of all parties
Avoid favourtism based on prejudice or personal affiliations
Should be no apprehensino that a judge/Magistrate may be unbiased for no reason
25
Role of Judge/Magistrate: Manage the Trial (4)
Oversee legal procedures, like giving evidence, witness testimonies
Maintain order and decorum in the court by adjusting the court if disparities appear
Enforce rules on admissibility of procedural matters and evidence, E.g Objection
Facilitating the presentation of arguments of a witness
26
(3) Role of Judge/Magistrate: Sentence an offender
Must take into account mitigating/aggrivating factors
Determine the appropriate punishment for the convicted (criminal)
Consider the 5 purposes of sentencing when making a decision
27
Role of Judge/Magistrate: Oversee outcomes of the case (3)
Magistrates decide the verdict by weight the evidence, legal arguments and law to determine guilt beyone reasonable doubt
Judge gives directions to jury to ensure an informed trial
Jury reads out a summary of facts and explains the laws being applied
28
Evaluate Judge and Magistrate: Extensive Legal Knowledge (fairness)
What? Legal knowledge contributed to fairness
How? Judges and Magistrates are equipped with extensive knowlege which enables them to interpret and apply the law accuratley. Ensure rules of procedures and evidence are correctly followed for both parties
Why? Both parties get a fair opportunity to present their case due to the judge's high level of expertise limiting any bias or uninformed decisions being made
29
Evaluate Judge and Magistrate: Extensive Legal Knowledge (fairness) HOWEVER
Reliance on legal techniqualities leads to a lack of flexibility
may be unable to balance legal expertise and considerations, cannot take into account certain circumstances
30
Evaluate Judge and Magistrate: Representing Self-represened parties (Access and Equality)
What? Can assist self represented parties achieveing equality
How? Inform them of legal proccesses, advise them of legal institutions they can use and make it compulsory for an accused to obtain legal rep in serious indictable offences
Children and teens: No formal robes, stay seated in questionning, use alternative terminology to cater for their level of understanding; reduces formality
Why? Works to amend a disparity caused by age or being self-represented by placing accomodative measured in place to ensure no disadvantge.
31
Evaluate Judge and Magistrate: Representing Self-represened parties (Access and Equality) HOWEVER
- Judges and Magistrates cannot overly help self-represented people and advise them of certian courses of action
- This can result in an outcome achieved not on an informed basis for those poorly represented, reducing access
32
Role of the prosecution (3)
1. They must disclose all information to the accused party prior to any legal proceedings
2. They must participate in the trial/hearing by providing opening and closing statements, evidence, examine witnesses and argue legal points
3. Make submissions about the sentencing, including victim impact statement and any aggravating/mitigating factors
33
Role of the accused (2)
1. They must participate in the trial/hearing, but they do retain the presumption of innocence
2. Make submissions about sentencing, including mitigating factors and circumstances of the current offender
34
What happens if the accused does not want to remain silent (4)
They accused can
- Make opening and closing addresses
- present evidence to support their case
- Call and examine their own witnesses
- Argue legal points
34
Strength of parties - opportunity for case presentation (equality)
A strength of parties is that they both have an opportunity to present their case, promoting equality
They can make opening and closing statements, provide evidence and perform examinations / cross examinations of witnesses to fully argue their position.
This reduces any disadvantage the parties may face if they were unable to argue their case on the same level as their opposing party. In providing both parties with an equal platform to argue their case, equality is upheld
35
Strength of parties - opportunity for case presentation (equality HOWEVER)
However, equality is limited if the accused party is self represented.
The accused party may have difficulty navigating complex legal processes within in the courtroom if they lack legal representation or sufficient legal knowledge.
As a result, an imbalance can be created between the 2 parties, causing one to be at a greater disadvantage than the other. This impacts equality of representation and argument in court, overall limiting equality
35
Strength of parties - Disclosure of all relevant information (fairness)
One strength of the parties is that they uphold fairness.
Fairness is upheld because there is an obligation, on the prosecution, to disclose all relevant information to the accused. This includes all evidence being gathered, witness statements and facts of the case.
This ensures that the accused is fully informed, so they can prepare their defense and avoid a 'trial by ambush'
This achieves fairness because it ensures all parties can participate in the criminal justice system openly and without any bias that may arise from the prosecution withholding evidence, promoting fairness.
36
Strength of parties - Disclosure of all relevant information (fairness HOWEVER)
However, the VLRC have noted that early and adequate disclose is an issue in Victoria, meaning the materials that need to be disclosed to the accused are not being done so in a timely and sufficient manner
It is also noted that the police will often wait for the defence to request any disclosure, as opposed to providing all disclosure upfront as they are expected to.
37
Strength of parties - Party control (access)
One strength of the parties is that they increase access
Access can be achieved through party control, which outlines each party's ability to control the presentation of their case. Because each party has a direct say in their representation and defense strategy, they can engage with the court processes on an informed basis of what material they have prepared to argue their case.
As a result, both parties can pursue their case on an informed basis, as they have obtained party control, and therefore achieve access.
38
Strength of parties - Party control (access HOWEVER)
However, because party contorl enables the accused to select what evidence they choose to put forward, there is no obligation to reveal the truth.
Because the accused also has the right to silence and has the presumption of innocence, they are not obliged to provide evidence or material to the court. This can prevent the truth from being revealed, particularly in cases where the accused is the only person present during the offence.
This can feel unjust for victims and their families because they cannot engage or pursue their case on a fully informed basis, as the accused can withhold any information they choose to using party contorl. This therefore prevents access from being achieved.
39
Roles of the jury (4)
1. Be Objective
2. Listen to all evidence
3. Understand directoins and summing up
4. Deliver a verdict
40
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Role of the Jury: Be objective (3)
The Jury Must:
- Avoid personal or percieved bias
- Maintain imparitality
- Focus on the case to apply the law objectively
41
Role of the Jury: Listen to Evidence (4)
- Actively listen to evidence being delivered
- Understand the complexity of the evidence
- Retain information
- Avoid using external influences of evidence
41
Role of the Jury - Deliver a Verdict (3)
- Colloborate to reach unanimous verdict
- Apply facts of the case to determine if they are beyond reasonable doubt
- Communicate the decision to the court
41
Role of Jury: Undertstand directions and sum up (4)
- Pay careful attention to the judge when providing instructions
- Apply the information from the judge to the case
- Understand the level of detail from the Judge's summary, and apply it to the case
- Integrate the judge's summary of the case into their understanding of the case
41
Strength of the Jury: Fairness
Selected at random and made up of different backgrounds
Ensures a wide and random range of views, ensures impartiality
42
Weakness of the Jury: Fairness
Vulnerable to bias, lack of representation in juries
Reduces diveristy, limit perspectives and makes jury more vulnerable to bias
Cannot be impartial
43
Strenght of the Jury: Access
Ordinary people get first-hand exposure to the judical processes
Foster an increase in awareness, allows individuals to engage with the criminal justice system on an informed basis
44
Weakness of the Jury: Access
Delays arise from time needed to understand complext legal processes
Jury deliberatoins can extend the length of a trial
Limits the efficency of the legal system, impacts peoples ability to engage with the criminal justice system
45
Why do we need legal representation? (L.O.T)
Legal knowledge
Remain objective
For traumatic of difficult cases
46
Court Order for Legal Rep
If the judge believes that an accused person would not be able to receive a fair hearing without legal rep and the accused cannot afford to pay for their own lawyer, they can ajourn the trial untli they obtain sufficent legal representation
Likely that this legal rep will come from VLA
47
Strength of Legal Rep: Expert Guidance
Legal practitioners provide expert assistance to the accused
Ensures the case is presented in the best possible light
Can navigate complex legal processes for the accused
Ensures all cases are represented effectively, allowing for an open and impartial participation in the criminal justice system
48
Weakness of legal practitoners: Uneven skill level
Not all legal practitoners are at the same skill level
A less skilles lawyer might not represent as well as a seasons lawyer
Leads to disparities in the legal processes, as the accused may receive lesser treatement as the other party
Reduces equality
49
Weakness of Legal Practitioners: Inadequate
Legal practitioners cannot always sufficiently provide the support the accused might need
E.g language barriers, trauma
If these individuals require additional support, and cannot receive it, their ability to impact on the same level as others is limited, creating disparities
49
Strength of Legal practitioners: Efficent
Legal practitioners reduce delays that are often encountered with self-represented parties
Familiar with court proceedings, increase the speed of the trial
Enables parties to engage on a more informed basis, increasing access
49
Strength of Legal Practitioners - Objectivity
Legal practitioners can remain impartial
Critical in important procedures like plea negotiatoins
Essential for making informed decisions in the interest of the accused objectively
Ensures that decisions are being made in the best interes of the accused in an impartial manner, increasing fairenss
50
Weakness of Legal Practitoners: Cost
Legal practitioner fees are incredibly expensive
up to $10,000 a day in legal fees for private lawyers
Prevents people from obtaining legal representation
Impedes an individuals right to effective legal rep
Limits access if they cannot afford engage in the criminal justice system on an informed basis
51
Impact of Cost
High costs associated with legal system, specifically legal representation
Not everyone can afford legal representation, leads to self-representation (access)
Disadvantage accused people because they lack of skills to properly navigate the legal system without legal rep
52
However: Impact of Legal Cost (VLA)
Legal services can be provided through VLA and CLC's and pro-bono insituties
A judge will ajourn the case if they believe the accused will not receive a fair trial w/o legal representation (obtained for free from VLA)
Rduces the impact of Cost
53
Measures taken to address cost (2)
Committal hearings - filter out weak cases to reduce unneccessary costs of a trial
Plea Negotionations - elimantes court fees and ongoing legal representation fees, reduce costs
54
However, VLA and CLC's have limited...
Funding. A lack of funding means the number of people they can assist is limited
Places pressure on the courts and causes delays
55
However: Impact of time
Delays associated with complexities of the case, evidence, committal hearings and covid
56
Impact of Time (right to be...)
An accused person has the right to be trialled without unreasonable delay
Where possible, delays should be avoided to the benefit of everyone
57
Measures taken to address time (2)
Plea Negotions: Reduce delays by achieveing an early-guilt plea
Frees up the courts ot be used for other cases
Judge alone trials: Temporarily introduced over COVID as a means to address delays caused by juries
Sped up the trials
58
Impact of cultural differences
Individuals who come from different cultures, like First Nations people or people whose first languae is not English can find the C.J.S comfronting/difficult to navigate
Language barriers, Cultural misunderstandings, lack of knowledge
No adequate measures are being taken (equality)
59
Measures taken to address cultural differences
Koori Court: Offers informal settings, round table, elders present.
Adequate measure taken to reduce the disparity cultural differences may bring
60
However: Koori Court
Limited as it's only a sentencing court
Accused has to be plea guilt
Cannot be a serious indictable offences like murder or sexual offence
60
Fines
Monetary payment imposed by the court
Specified amount
Expressed as penalty untits
60
Fines: Deterrence
General and specific Deterrance: Fear of incurring monetary penalties deter unlawful behaviour
However: Socio-economic capacity of the offender, amount of the fine and the chance of being caught can impact detterance
61
Fines: Protection
Do not provide physical provention by imposing a financial burden
62
Rehabilitation
No, lack of programs to address the underlying problem
However: Financial consequence can motivate the offender to change their behaviour
63
Punishment
Yes, imposing a financial burden is a form of punishment
However: The extent of impact varies due to factors of price of fine, capacity of offender to pay the fine and financial harm done
64
CCO's: Detterance
General: Limited knowlegde into CCO's means limited deterrance for public
Specific Detterance: loss of personal liberty, restrictions and conditions likely to deter individual
Detterance depends on the mindset, circumstance and risk-reward analysis for the offender
64
Denunciation
Fines send a disapproving message that unlawful behaviour is not tolerated
65
CCO's
Community Correctino Orders (CCO's) are a non-custodial sanction that remain offenders in the community under certain conditions
Core conditions: apply to all offenders (e.g. not reoffending)
Optional conditions: Decided by the judge, still compulsry (e.g. curfews, community service)
CCO's in the Magistrates court - Max 2 years
CCO's in the Supreme Court - May 5 Years
66
CCO's: Rehabilitate
Yes, address the underlying cause, allow them to stay in the community to receive support, include rehabilitative treatements like counselling
However: Success of rehab relies on offender's willingness
67
CCO's: Protection
Keep the offender in the community - increase the chance of danger and harm, reduce protection
However: Restrictions like curfews and rehabiltative aspect can lead to long-term protection
67
CCO's: Punishment
CCO's restric freedom and activites, burdensome and serve as a form of punishment
However, less sever conditoins lead to a reduced punitive impact
68
CCO's: Duncitation
Demonstrates disapproval through enforcing community service and other requirements
However: General public may not be aware of harsh conditions, reduced denuciatory impact
68
Imprisonment
A custodial sanction that involves the confinement of an individual to a correctional facility for a specified time, involving the depreivation of individual liberty.
The most severe and last resort sanction
68
Imprisonment: Detternace
General: Threat of prison demonstrates severe consequences, deters society
Specific: Experience of loss if personal freedom and harsh conditions in prison can deter offenders from re-offending
However: Recidivism rate is 45%, implies specific deterrance is limited. Offenders may become institutionalized
69
Imprisonment: Protection
Removes offenders from society, protects them from potential harm
Offender's movements in prison are limited and controlled
However, in the long term protection can be limited because of the criminal activity offenders are exposed to in prison, making them more dangerous once they are released
69
Imprisonment: Punishment
Overall loss of liberty, removal from soceity and harsh conditions is punishment
Effectiveness varies based on length of imprionsment and circumstances
Offenders can become institutionalized in prison, do not perceive it as a punishment but an alternative to society, may reoffend to go back
69
Imprisonment: Rehabilitation
Does not address the core problem, or underlying issue causing the offending
Rehabilitation programs often ineffective, unavailbale, 45% recidivism rate
70
Aggrivating factors
Increase an offenders culpability
Increases seriousness of the crime
Can impose a higher sentence
70
Imprisonment: Denunciation
Prison being a last resort and severe sanction shows the court's condemnatino of the offence
70
Aggrivating factors: Examples
Violence
Relationship of trust violated
Use of weapon
Do not cooperate
Prior convictoins
Gravity of the offence
71
Mitigating factors
Reduce the seriousness of the offence
Reduce offender's culpability
Can impose a lighter sentence
72
Guilt pleas (mitigating)
Ealry guilt plea must be taken into account during sentencing as a mitigating factor
Guaranteed a 25% reduction in the sentece
When and if the accused pleaded guilty is considered
72
Mitigating factors: Examples
No prior convictions
Remorse
If the offender was provoked
Early Guilt plea
Cooperation
Mental impartiemnt
Age
72
