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legal 3/4 > unit 3 aos1 victorian criminal justice system part B > Flashcards

unit 3 aos1 victorian criminal justice system part B Flashcards

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1
Q

4 roles of the judge and magistrate

A
  • act impartially
  • manage the trial or hearing
  • decide or oversee the outcome of the case
  • sentence an offender
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2
Q

apprehended bias

A

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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3
Q

when managing a trial/hearing, judges and magistrate must (4)

A

make sure correct court procedure is followed, ask occasional questions of a witness/recall one for clarification, deciding on whether evidence is to be permitted or excluded, adjust trial processes to ensure a party does not suffer disparity

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4
Q

victim impact statement

A

a statement filed with the court by a victim that is considered by the court when sentencing.

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5
Q

2 strengths of judges/magistrates

A

they act as an impartial umpire, manage the hearing processes and ensuring rules of evidence and procedure are followed

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6
Q

2 weaknesses of judge and magistrates

A

they cannot overly interfere in a case especially when it comes to helping a self represented person, they may have apprehended bias

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7
Q

4 roles of the jury

A
  • be objective
  • listen to and remember the evidence
  • understand directions and summing up
  • deliver a verdict.
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8
Q

2 strengths of juries

A

make a decision based on facts, not on biases, Juries represent a cross-section of the community. They are made up of a diverse group of people

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9
Q

2 weaknesses of a jury

A

Jury members may have unconscious biases or prejudices, and as they do not give reasons for their decision, Jury trials may result in further delays as rules, evidence and processes need to be explained

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10
Q

3 roles of the prosecution

A
  • disclose information to the accused
  • participate in the trial or hearing
  • make submissions about sentencing.
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11
Q

4 steps of participating in a trial or hearing

A

presenting an opening address, presenting the evidence, cross examining any witness, making a closing address

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12
Q

2 roles of the accused

A
  • participate in the trial or hearing
  • make submissions about sentencing.
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13
Q

2 strengths about the parties

A

The prosecutor has special obligations to disclose all relevant matters to the accused. The accused must also not seek to change witnesses without notice to the accused. This ensures there is no ‘trial by ambush, they both have the opportunity to cross examine witnesses

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14
Q

2 weaknesses of the parties

A

The processes involved are complex and difficult to understand without a lawyer, making it difficult for self-represented accused people, ‘Party control’ and the right to silence may mean that the truth does not come out.

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15
Q

4 reasons why legal practitioners are needed

A
  • a person who is representing themselves lacks the skills and experience to navigate the criminal justice system
  • a self-represented accused person does not generally have the objectivity to be able to make the right decisions.
  • it avoids a situation where the accused is directly questioning witnesses
  • although the court and judges can assist self represented accused people to some extent in understanding the processes, this cannot extend to advocating on behalf of the self-represented accused person.
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16
Q

2 strengths of legal practitioners

A

they have objectivity in being able to make decisions in the criminal case, such as whether to accept an agreement in a plea negotiation, can help avoid delays that may arise with self-represented accused people

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17
Q

2 weaknesses of legal practitioners

A

Some legal practitioners are more experienced than others, which may impact on the quality of the legal services, Legal representation alone may not assist an accused, particularly those who cannot understand English

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18
Q

3 factors that can impact on the achievement of the POJ’s

A

Costs, time & cultural differences

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19
Q

3 issues with costs

A

Solicitors charge time-based fees that are often several hundred dollars per hour of their time, Additional charges can come in the form of court fees and filing of documents which can range between $4000 in magistrates court and $11000 in county court, increase in self-representation due to lack of funding to VLA and CLCs

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20
Q

how do cost factors impact fairness? (2)

A

Unrepresented litigants can be disadvantaged due to lack of familiarity with trial procedures, Self represented or underrepresented clients will not know their rights, will not know rules of evidence and procedure.

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21
Q

how do cost factors impact equality?

A

Parties without skilled representation may be faced by more skilled barristers who are better placed to present their case.

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22
Q

how do cost factors impact access?

A

Self represented or underrepresented clients will not know their rights, will not know rules of evidence and procedure.
Accused people may be more inclined to plead guilty if they cannot afford to be represented in a contested trial.

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23
Q

3 ways to address cost issues

A

availability of legal aid, use of committal proceedings, use of plea negotiations

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24
Q

1 strength to using legal aid to address cost issues

A

VLA and CLC’s develop criteria (means test) to determine which cases will be funded, so that the least financially stable people get helped first

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25
1 limitation to using legal aid to address cost issues
less than 10 per cent of Australians are eligible for legal aid and each year, thousands of vulnerable and disadvantaged people have their applications for legal aid rejected.
26
1 strength of using commital proceedings to address cost issues
The effect of this allows weaker cases to be filtered out. If the Magistrate doesn’t find there to be enough to commit to trial, then the case is dismissed.
27
1 limitation of using committal proceedings to address cost issues
It is argued that these proceedings are a waste of time and money when the case is strong. Majority of cases proceed after a committal proceeding.
28
1 strength of using plea negotiations to address cost issues
Avoids the need for a trial, therefor saving costs and allowing the court to put resources where they are needed
29
2 issue with time
Preparing a case for trial is a time-consuming (especially for complex cases) part of the process – evidence needs to be collected etc, covid increased the backlog of cases.
30
2 ways to address time delays
Plea negotiations help to reduce delays by encouraging early guilty pleas. This means that there is no need for a trial, Investment in technology helps to address delays by allowing people to appear by video link.
31
how does time delays limit fairness
Delays impact evidence - witnesses may forget important parts of their testimony.
32
how does time delays limit equality
Vulnerable persons in the court system may find delay more distressing and therefore be disadvantaged before the law
33
how does time delays limit access?
Delay in cases negatively impact on the accessibility of courts for all parties.
34
4 types of cultural differences
knowledge about the legal system, language difficulties, cultural misunderstandings, failures of the legal system to account for disadvantage
35
6 difficulties faced by ATSI people within the legal system
language barriers, direct questioning, body language, cultural taboos, lack of understanding of court procedure, stress/anxiety over incarceration.
36
the koori court
The Koori Court is a division of the Magistrates’ Court, County Court and Children’s Court
37
requirements for koori court
It is used for Aboriginal persons charged with criminal offences who plead guilty and who consent to having their sentence determined by the Koori Court.
38
3 features of the koori court
Hearings are less formal than other courts. They generally take place around a table and are attended not only by the sentencing judge but also by Koori elders and Koori respected persons. They both advise the court on cultural issues and advise the accused on the effect that their offending has had on the broader Aboriginal community.
39
sanction
a penalty (e.g. a fine or prison sentence) imposed by a court on a person guilty of a criminal offence
40
conviction
a finding of guilt made by a court, whether or not a conviction is recorded. Where a conviction is recorded, it will form part of the person’s criminal record
41
recidivism
re-offending; returning to crime after already having been convicted and sentenced
42
5 purposes of sanctions
rehabilitation, punishment, deterrence, denunciation, protection
43
imprisonment
Record a conviction and order that the offender serve time in a prison
44
community corrections order
With or without recording a conviction, make a community correction order. The order will be made with certain conditions attached to it.
45
fine
a sanction that requires the offender to pay an amount of money to the state. protected by the Crimes Act 1958
46
rehabilitation
one purpose of a sanction, designed to reform an offender in order to prevent them from committing offences in the future
47
punishment
one purpose of a sanction, designed to penalise (punish) the offender and show society and the victim that criminal behaviour will not be tolerated
48
deterrence
one purpose of a sanction, designed to discourage the offender and others in the community from committing similar offences. includes general and specific
49
general deterrence
one purpose of a sanction, designed to discourage others in the community from committing similar offences
50
specific deterrence
one purpose of a sanction, designed to discourage the offender from committing further offences
51
denunciation
one purpose of a sanction, designed to demonstrate the community’s disapproval of the offender’s actions
52
protection
one purpose of a sanction, designed to safeguard the community from an offender by preventing them from committing further offence (e.g. by imprisoning the offender)
53
what does 1 penalty unit equal?
$197.59
54
how to determine the amount of the fine?
The Sentencing Act requires that the court consider: The financial circumstances of the offender and the burden that the payment of the fine will impose.
55
what happens if a fine isnt paid? (2)
A court can alter the sanction or discharge the sanction if the circumstances for the offender have changed substantially. If the offender is refusing to make payments warning notices can be sent, warrant to seize property can be issued. Imprisonment or community services can be issued.
56
how can fines achieve punishment
depending on the financial circumstances of an offender, fines can serve to punish by requiring them to pay money to the state. the fine needs to be high enough to act as a punishment.
57
how can fines achieve deterrence
fines serve to discourage both the offender (specific deterrence) and the community (general deterrence) from committing a similar act. the fine must be high enough to impose a burden on the offender. if the fine is not enforced, the community is less likely to be deterred if they know there will be no repercussions if they don't pay.
58
how can fines achieve denunciation
A larger fine (e.g. a level 2 fine) may send a stronger message of disapproval than a smaller fine (e.g. a level 12 fine). A smaller fine (e.g. a level 12 fine) may not be sufficient enough to send a strong message to the community.
59
the extent to which fines can achieve it's purpose is dependent on: (5) (similar to advantages)
*The financial circumstances of the offender *The offender’s ability to pay. *The amount of the fine *Whether the fine is paid and / or enforced. *Whether the community is aware of the potential for a fine.
60
fines do not.... (Similar to disadvantages)
protect the community; or rehabilitate the offender.
61
community correction order
a flexible, non-custodial sanction (one that does not involve a prison sentence) that the offender serves in the community, with conditions attached to the order
62
eligibility for a cco
the offender has been convicted or found guilty of an offence punishable by more than 5 penalty units. the offender consents to the order. The court must also be satisfied that the CCO is appropriate for the offender. A CCO cannot be imposed for certain offences known as ‘category 1 offences’. These include murder, various sexual offences, some assault offences and some drug offences.
63
6 mandatory conditions attached to CCOs
* must not commit another offence punishable by imprisonment during the period of the order * must report to a specified community corrections centre within two working days of the order coming into force * must report to and receive visits from a community corrections officer * must notify an officer of a change of address or employment within two working days after the change * must not leave Victoria without permission * must comply with any directions of community corrections officers.
64
10 additional conditions that could be applied to CCOs
unpaid community work, treatment/rehab, supervision, non association, residential restriction, place or area exclusion, curfew, alcohol exclusion, bond, judicial monitoring
65
3 main purposes of ccos
deterrence, denunciation, rehabilitation
66
how do ccos achieve deterrence
Many of the mandatory conditions, particularly the requirement not to commit another offence punishable by imprisonment, can act as a specific deterrent on an offender as they can be resentenced if they breach such a condition. Whether a CCO can deter the community depends on whether the public know about it. It may also depend on the extent to which the communication of the CCO clearly demonstrates how harsh the CCO is, or how punishing or impacting it is on the offender.
67
how can a cco achieve denunciation
The length of the CCO. A longer CCO is likely to send a stronger message that this type of behaviour is not acceptable than a shorter CCO.
68
how can a cco achieve rehabilitation
Whether the offender is rehabilitated may depend on whether they actively participate in the rehabilitation programs and want to continue that behaviour after the CCO.
69
what happens if an offender does not comply with a cco?
The court can also impose a different sanction, vary the conditions, or even cancel the CCO and make no further order.
70
imprisonment
a sanction that involves removing the offender from society for a stated period of time and placing them in prison
71
concurrent sentence
a sanction that is to be served at the same time as one or more other sentences; usually given in relation to two terms of imprisonment
72
cumulative sentence
where two sentences are imposed, and are to be served one after the other; for example a term of imprisonment is to be commenced after the first term is served
73
indefinite sentence
a term of imprisonment that has no fixed end date, usually given to the most serious offenders
74
4 purposes of imprisonment
protection, punishment, deterrence, denunciation,
75
how can imprisonment achieve protection
society will be protected while the offender is in custody. Longer sentences mean a greater time during which the offender cannot harm the community.
76
how can imprisonment achieve punishment
A longer prison term acts as a greater restriction on freedom and therefore may act as a greater punishment. However, this depends on the offender. Even a short period of time in prison can be punishing given the removal of liberty.
77
how can imprisonment achieve deterrence
longer prison term acts as a greater restriction on freedom and therefore may specifically deter an offender from offending again.
78
how can imprisonment achieve denunciation
sentences, including terms of imprisonment, must be communicated to the public in a way that makes people understand that particular types of behaviour are unacceptable and may result in time in jail for others who engage in similar behaviour.
79
what are the 4 sentencing factors
aggravating, mitigating, guilty pleas, victim impact statements
80
aggravating factors
facts or circumstances about an offender or an offence that can lead to a more severe sentence
81
mitigating factors
facts or circumstances about the offender or the offence that can lead to a less severe sentence
82
guilty pleas
when an offender formally admits guilt, which is then considered by the court when sentencing
83
victim impact statements
a statement filed with the court by a victim that is considered by the court when sentencing. It contains particulars of any injury, loss or damage suffered by the victim as a result of the offence

legal 3/4 (4 decks)

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