unit 3 aos1 victorian criminal justice system part A Flashcards
(101 cards)
1
Q
criminal justice system
A
a set of processes and institutions used to investigate and determine criminal cases
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2 purposes of the criminal justice system
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decide whether an accused is guilty of an offence and impose a sanction in cases where an accused has been found or pleaded guilty to an offence.
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3 stages of a criminal case
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investigation, determination, corrections
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Q
sanction
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a penalty (fine or prison sentence) imposed by a court on a person guilty of a criminal offence
5
Q
australian constitution
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a set of rules and principles that guide the way Australia is governed. The australian constitution is set out in Commonwealth of Australia Constitution Act
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commonwealth offences
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crimes that break a law passed by the commonwealth parliament
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Q
statute
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a law made by parliament; a bill that has passed through parliament and has recieved royal assent
8
Q
each state and territory has its own criminal justice system and laws that establish: (3)
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what is considered a crime, the processes used to decide if someone is guilty, the maximum penalty that can be imposed for each specific crime.
9
Q
3 courts of victoria in hierarchy order
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the magistrate’s, the county court, the supreme court
10
Q
2 parties in a criminal case
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prosecution and accused
11
Q
the prosecution
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used to describe the party that presents the evidence in court on behalf of the state against a person accused of commiting the crime.
12
Q
a prosecutor
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the representative of the prosecution who is responsible for conducting the criminal case and appearing in court
13
Q
who prosecutes serious crimes in the county and supreme courts (in victoria)
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the office of public prosecutions (OPP) and the director of public prosecutions (DPP)
14
Q
director of public prosecutions (DPP)
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the independent officer responsible for commencing, preparing and conducting prosecutions of indictable offences on behalf of the State of Victoria. OPP may do this on behalf of the DPP
15
Q
jury
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an independent group of people chosen at random to determine questions of fact in a trial and reach a decision (i.e. a verdict)
16
Q
summary offence (+3 examples)
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a minor offence generally heard in the magistrates’ court. may include drink driving, disorderly conduct and minor assaults.
17
Q
indictable offences
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a serious offence generally heard before a judge and jury in the county court or supreme court of victoria
18
Q
what occurs when an accused pleads not guilty for an indictable offence?
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committal proceedings
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committal proceedings
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the pre trial hearings and processes held in the magistrate’s court for indictable offences.
20
Q
what is the purpose of committal proceedings?
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the purposes of committal proceedings is to ensure that it is a case with adequate evidence before going to court or even finding out whether the accused will plead guilty or not guilty.
21
Q
indictable offences heard summarily
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a serious offence that is dealt with as a summary offence if the court and the accused agree. this is determined by statute (Criminal Procedure Act 2009).
22
Q
what are 3 reasons as to why someone would prefer to have their indictable offence heard summarily?
A
quicker, cheaper and the maximum penalty that can be handed down is less than if it were heard as an indictable offence.
23
Q
burden of proof
A
the obligation (i.e. responsibility) of a party to prove a case. The burden of proof usually rests with the party who initiates the action (i.e. the plaintiff in a civil dispute and the prosecution in a criminal case)
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Q
standard of proof
A
the degree or extent to which a case must be proved in court. In a criminal case, the prosecution must prove the case beyond reasonable doubt.
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beyond reasonable doubt
the standard of proof in criminal cases. This requires the prosecution to prove there is no reasonable doubt that the accused committed the offence
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presumption of innocence
the right of a person accused of a crime to be presumed not guilty unless proven otherwise.
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what is the presumption of innocence protected by?
the charter of human rights and responsibilities act 2006.
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common law
law made by judges through decisions made in cases . Also known as case law or judgemade law (as opposed to statute law)
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5 ways the presumption of innocence is upheld
an accused has the right to silence, police must reasonably believe a person has committed a crime before they can be arrested, for indictable offences the prosecution must prove there is enough evidence to support a conviction before going to trial, a person's prior convictions cannot be revealed until sentencing, an offender has the right to appeal a wronful conviction.
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rule of law
the principle that everyone in society is bound by law and must obey the law
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what are the 3 rights of an accused?
the right to be tried without unreasonable delay, the right to silence, the right to be tried by a jury
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the right to be tried without unreasonable delay
The accused has the right to have their charges heard in a timely manner. Delays should only occur if they are considered reasonable without discrimination
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why is the right to be tried without unreasonable delay important? (3)
They can make it more difficult to conduct a trial because memories fade over time. Delays = costs.
Interferes with concept of innocent until proven guilty.
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how is the right to be tried without unreasonable delay protected?
Charter of Human Rights and Responsibilities Act 2006 (Vic) – sections 21 and 25
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the right to a trial by jury
A trial by jury is where a person’s peers within the community decide the outcome of the case – in a criminal case, whether or not the accused is guilty
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how is the right to be trialled by a jury protected? (2)
Juries Act 2000 (Vic) for state indictable offences and Section 80 of the Australian Constitution for Commonwealth indictable offences
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the right to silence
the protection given to an accused person to not have to say anything. The right to silence can include the refusal to answer questions. There can be no negative consequences for an accused person who invokes this right. This includes any assumptions about guilt based on the refusal to speak.
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how is the right to silence protected?
Both common law and statute law protect the right to silence, and a judge should direct the jury on this topic.
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how does fairness uphold the rights of an accused? (2)
The right to silence is linked to the presumption of innocence. It leaves the pressure of proving the case with the prosecution who made the accusation. Juries are unbiased and impartial.
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how can the rights of an accused threaten fairness? (2)
Juries have no legal training or expertise. There is also the issue they may maintain bias.
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how does equality uphold the rights of an accused? (1)
All accused persons regardless of personal characteristics receive these rights under statute and common law
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how does access uphold the rights of an accused? (2)
Trials held without unreasonable delay reduce the time spent in the legal system, making it cost less and generally more accessible. Presence of juries simplify court proceedings
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how can access threaten the rights of an accused? (1)
A case that moves too fast, does not give the accused enough opportunity to seek resources and support, limiting their access.
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Victims' Charter
the Victims’ Charter Act 2006 (Vic), which recognises the impact of crime on victims and provides guidelines for the provision of information to victims
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3 rights of a victim
The right to give evidence using alternative arrangements, The right to be informed about the proceeding, The right to be informed of the likely release date of the offender
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the right to give evidence using alternative arrangements
measures that can be put in place for witnesses in certain criminal cases (e.g. as sexual offence cases) to give evidence in a different way (e.g. via video link)
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3 types of cases in which alternative arrangements can be made
sexual offence, family violence, threatening behaviour
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3 types of alternative arrangements
The witness may give evidence from a place other than the courtroom, Screens may be used to remove the accused from the direct line of vision of the witness, Only certain persons (specified by the court) may be allowed in court when the witness is giving evidence.
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purpose of alternative arrangements
The purpose of alternative arrangements is to try to reduce the trauma, distress and intimidation that a witness may feel when giving evidence.
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the right to be informed about the proceedings
recognises that people adversely affected by crime should get certain information about the proceeding and about the criminal justice system.
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the right to be informed of the likely release date of the offender
A person who is a victim of a criminal act of violence may apply to be included on the Victims Register.
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Victims register
a register (i.e. database) maintained by the state of Victoria set up to provide the victims of violent crimes with relevant information about adult prisoners while they are in prison (e.g. the prisoner’s earliest possible release date)
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fairness
everyone can participate in the justice system and its processes should be impartial and open.
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impartial processes
Central to the principle of fairness is that our courts and personnel, including judges, magistrates and jury members, are independent and impartial. This means that people should not show bias towards or against either party, and the case must be decided based on facts and law, not on prejudices.
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apprehended bias
a situation in which a fair-minded lay observer might reasonably believe that the person hearing or deciding a case (e.g. a judge or magistrate) might not bring an impartial mind to the case
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open processes
Having open processes in the criminal justice system is central to the achievement of fairness. This is because it helps ensure the institutions and people who administer justice can be scrutinised by the public and held accountable for their actions, decisions and practices.
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3 examples of fairness being upheld
decision making by judge/magistrate is impartial and independent, the presumption of innocence means that the burden of proof is on the accuser, appeals allows a party who feels that they have been dealt with unfairly to go to a superior court to have their case reheard.
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equality
means people should be treated in the same way, but if the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow all to engage with the justice system without disparity or disadvantage
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2 examples of equality being upheld
interpreter services are available for people with language difficulties, the accused has the right to legal representation
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access (+1)
means that all people should be able to engage with the justice system and its pr ocesses on an informed basis
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3 examples of access being upheld in the criminal justice system
the availability of plea negotiations, specialist courts (Koori and Drug court), VLA and CLC increase access to legal services and assistance.
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Victorian Legal Aid
a government agency that provides free legal advice to all members of the community and low-cost or no-cost legal representation to some people who cannot afford a lawyer
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4 types of assistance the VLA offers
free legal information, free legal advice, duty lawyer services, grants of legal assistance
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what type of free legal information does the VLA provide
Free publications on the VLA website, available to everyone
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what free legal advice does the VLA provide
Advice provided in person or via phone, Focus is on people who need support the most (e.g. children, people with disability, people in custody, Indigenous Australians)
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what duty lawyer services do the VLA provide
VLA lawyers who are at court and can support people who have a hearing that day, Supports people who pass the income test (and typically facing a serious charge)
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income test
the test applied by Victoria Legal Aid (VLA) to determine whether a duty lawyer can represent an accused. The test is satisfied when the accused can show they have limited income (e.g. their primary source of income is social welfare provided by government)
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what grants of legal assistance do the VLA provide
Legal assistance for people who can’t afford a lawyer (includes preparation, advice and representation), Follows strict guidelines of a means test. Can help if it benefits the public.
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means test
the test applied by Victoria Legal Aid (VLA) to determine whether an applicant qualifies for legal assistance or representation in court (beyond the services of the duty lawyer on the day). It takes into account the applicant’s income, assets and expenses
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community legal centre
are a non for profit legal assistance service provider and community based organisation. it is indepedent and helps people who typically cannot access legal support
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2 types of CLC's
generalist and specialist
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generalist clc
a community legal centre that provides a broad range of legal services to people in a particular geographical area of Victoria
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specialist CLC
a community legal centre that focuses on a particular group of people or area of law (e.g. young people, asylum seekers, domestic violence and animal protection)
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4 types of legal assistance CLC's offer
basic legal information, legal advice and assistance, duty lawyer services, ongoing casework
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3 strengths of clc's
free legal info online, offers services in different languages, educates their community about their rights
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3 weaknesses of clc's
insufficient funding, limited to mostly summary offences, limited staff/volunteers
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plea negotiations
pre-trial discussions between the prosecution and the accused, aimed at resolving the case by agreeing on an outcome to the criminal charges laid
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3 purposes of plea negotiations
to ensure certainty of the outcome of a criminal case, to save on costs, time and resources, to achieve a prompt resolution to a criminal case without the stress of a criminal trial
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when should a plea negotiation occur? (4)
if the accused is willing to cooperate and plead guilty, if the accused is represented by a lawyer, if the witnesses will not give evidence, if the victim agrees.
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when should a plea negotiation not occur? (3)
in high profile cases where there is a need for transparency, if the victim does not want the accused to recieve lesser chargers (they dont get final say), if the accused is unrepresented.
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3 strengths of plea negotiations
Victims, witnesses and their families, and the accused’s family are saved the trauma of the trial process, guarantees a conviction if the accused is willing to plead guilty, saves the cost of a full trial or hearing.
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3 weaknesses of plea negotiations
Victims do not have a ‘final say’ on whether a prosecutor negotiates, The negotiation process may be seen as the prosecutor avoiding the need to prove the case beyond reasonable doubt, can be held privately this lack of transparency may make some people question the agreement
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victorian court hierarchy order
magistrate's court, county court, supreme court (trial division), supreme Court (Court of appeal), high court of australia
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original jurisdiction
the power to hear a case for the first time
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appellate jurisdiction
the power of a court to hear a case in which a decision is being reviewed
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jurisdictions of the magistrate's court
original: summary offences and indictable offences heard summarily, appellate: none
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jurisdictions of the county court
original: indictable offences except murder, attempted murder, certain conspiracies, corporate offences, appellate: from the magistrate's on conviction or sentence
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jurisdictions of the supreme court (trial division)
original: most serious indictable offences, appellate jurisdiction: from the magistrates' court on points of law.
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supreme court (court of appeal) jurisdictions
original: none, appellate: From the county court or supreme (trial division), from the magistrates court where the chief magistrate decided the case.
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specialisation
Courts can develop expertise in certain areas of law that they deal with regularly
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how does specialisation uphold fairness
When courts specialise, they develop expertise in particular types of cases. This enables them to expertly apply the law consistently across cases in terms of judgements and sentencing.
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how does specialisation uphold access
Magistrate’s and Judges develop expert knowledge in particular types of cases which enables them to make decisions more quickly. This improves ‘engagement’ and reduces delays.
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appeal
an application to have a higher court review a ruling (decision)
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3 grounds for appeals
questions of law, the conviction itself. Severity of sanction
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how do appeals uphold fairness
When a higher court impartially reviews the case, it can determine whether an error was made and correct it. This ensures that the case is correctly determine on the facts and law. It guards against favouritism and discrimination.
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how do appeals uphold equality
Every person can appeal, provided there are legal grounds to do so.
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how do appeals uphold access
If an accused person believes that their conviction is not fair, they are able to access a second opinion.
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2 strengths of court hierarchy
Court hierarchy facilitates specialisation on criminal matters, allowing them to be heard more efficiently. Facilitates a process of appeals. If there have been any errors, they can be corrected.
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2 weaknesses of court hierarchies
Court system can be confusing for people to navigate, there is no automatic right to an appeal.
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3 similarities between VLA and CLC
Both CLCs and VLA provide a range of free legal assistance to anyone seeking to access it, both provide duty lawyer assistances for some cases, both are funded by state and commonwealth governments.
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3 differences between vla and clc
VLA can provide legal assistance and representation for indictable offences whereas CLCs very rarely provide legal assistance for indictable offences, When taking on cases VLA have a means test whereas each CLC has their own eligibility requirements when taking on casework, VLA exists to serve anyone looking for legal advice or assistance; specialist CLCs provide legal advice or assistance only to a certain group of people.
