Unit 3 Area of Study 1 - Criminal Justice System

Question 1

Define a Summary Offense

Answer 1

Lesser serious offences that are heard and determined by Magistrates’, in the Magistrate’s Court. They do not have the right to jury.
Tattooing of juveniles - while unlawful and harmful, it is considered as a lesser severe offense

Question 2

Define an Indictable Offense

Answer 2

More serious crimes where guilt is determined by the jury, and the sanction is determined by the judge. They are held in the county or supreme court, although in some cases, indictable offenses can be heard and determined summarily.

Question 3

Compare Summary and Indictable Offenses

Answer 3

Both summary and indictable offenses are established through statutes introduced by Parliament, binding on all citizens of that state. However, Indictable offences are sourced from the Crimes Act and Wrongs Act of 1958, unless the contrary intention appears. Whereas, Summary Offenses are sourced primarily through the Summary Offences Act of 1966, alongside other statutes and regulations. Individuals charged with an indictable offence are entitled to a trial by jury, where juries determine guilt and the judge determines the sanction, held in the county or supreme court. Whereas, summary offences are heard and determined only by a Magistrate, in the Magistrate’s Court. Indictable offences are punishable up to the maximum penalty for that offence, as prescribed in legislation. Whereas, summary offences are punishable up to 2 years imprisonment for a single offence, 5 years for multiple, and fines of up to 500 penalty units for individuals.

Question 4

Indictable Offenses Heard Summarily

Answer 4

Some indictable offences can be heard and determined in the Magistrate’s Court, if the offence is on levels 5-6 of the penalty scale or is punishable by levels 5-6 imprisonment/fine. If they wish to pursue a summary hearing, the courts must consider it appropriate, and the accused must consent. Factors such as the seriousness of the offence, adequacy of sentences available and presence of co-offenders must also be considered.

Question 5

Burden of Proof - Criminal

Answer 5

The responsibility of establishing the facts of the case. In criminal law, the onus is on the prosecution to establish the relevant facts. In some instances this can be reversed, such as if drugs were found at a property, which would be assumed to be that owner’s property unless they prove otherwise.

Question 6

Standard of Proof - Criminal

Answer 6

The level of evidence required to establish a case. In criminal law, this is beyond reasonable doubt - where doubt is realistic. If the burden of proof is reversed, the standard is lowered to the balance of probabilities, where the accused’s version of fact is more then 50% likely to be true.

Question 7

The Presumption of Innocence

Answer 7

The presumption that the accused is innocent of all charges against them unless proven otherwise in a court of law, as confirmed in the Charter of Rights and Responsibilities. This is reflected through bail, the burden and standard of proof, the right to silence, and prior convictions not being revealed to the jury prior to their verdict.

Question 8

What are the main rights of the accused?

Answer 8

• the right to silence
• the right to trial by jury
• the right to trial without unreasonable delay

Question 9

Right to trial without unreasonable delay - describe

Answer 9

The accused is entitled to having their case heard in a timely manner. Any delay should be reasonable, such as allowing time for the accused and prosecution to gather evidence and prepare their cases. Cases of state interest, and/or involving a child as the accused, are to be fast-tracked. This maintains the presumption of innocence. This right is found through the Human Rights Charter.

Question 10

Right to silence - describe

Answer 10

The accused has the right to remain silent during questioning and during criminal proceedings, where they are also not required to give evidence or call witnesses. Remaining silent or changing defence both cannot be used as signs of guilt, by the judge or jury. This is sourced through common law and statute law (specifically the evidence act).

Question 11

Right to trial by jury - describe

Answer 11

A person charged with an indictable offence is entitled to a trial judged by their peers. This does not extend to summary offences. The jury is to be made up of 12 members of the community, representing a cross-section of society. This is not protected by the Charter, rather section 80 of the constitution and the Criminal Procedures Act of 2009 (Victoria).

Question 12

Case study - trial without unreasonable delay

Answer 12

Gray V DPP 2008 - Justice Bongiorno ordered that the accused is to be let out on bail due to uncertainty over trial dates and the likelihood that their trial is to be significantly delayed - how the courts can address these rights

Question 13

Victim’s Rights Act 2006

Answer 13

Main source of Victorian victim’s rights, recognising the impact of offences on victims and addressing needs for alternative delivery of information, protection of privacy, and upholding respect.

Question 14

What are the main rights for victims?

Answer 14

• Right to be classified as a vulnerable witness
• Right to be informed of proceedings
• Right to be informed of likely release date of the offender

Question 15

Right to give evidence through alternative arrangements - describe

Answer 15

Sourced through the Criminal Procedures Act, the court has the ability to direct special arrangements for witnesses who give evidence for charges involving sexual violence or exposure, family violence or indecent, obscene, threatening public bheaviour. Arrangements exist to minimise trauma from trial and can include testifying from an off-site location, behind a screen or with a person of support, the court being cleared throughout the testimony or the barristers staying seated during cross-examination.

Question 16

Special arrangements for children and mentally impaired

Answer 16

Special protections exist for cases involving child pornography, assault and sexual offences, specifically for young people and individuals cognitively impaired, to minimise undue stress and trauma, including the victim testifying without the accused present or no cross examination without court approval.

Question 17

The right to be informed of proceedings - describe

Answer 17

Sourced by the Victim’s charter, individuals adversely affected by the offender’s actions have the right to be informed about progress in the investigation and available support services. From the outset of the trial, the prosecution is also required to inform the victim of charges pursued and where to find information about the trial.

Question 18

The right to be informed of the likely release date of the criminal - describe

Answer 18

Victims of violent offences such as rape, assault, stalking etc. have the right to apply to be on the Victim’s Register, to be informed about sentence severity, the likely release date and any escape of the convicted and incacerated offender. They can also make a submission to their parole hearing.

Question 19

Fairness

Answer 19

Legal processes, systems and institutions should be administered in a way that is reasonable and unbiased, where all parties are entitled to impartial pre-trial and trial processes. Fair treatment should be facilitated for all, not necessarily identical treatment. This is influenced by availability of representation, whether laws were applied properly and the time it takes for the case to be heard.
Examples include:
- Jurors can’t have prior knowledge / relationship to the case
- Impartial judge and jury
- Trials are open to the public/media, permitting scrutiny if legal policies aren’t applied appropriately
- The Presumption of Innocence - all about treating accused differently

Question 20

Equality

Answer 20

Everyone should be considered equal before the law, regardless of personal attributes such as race, gender, religion, etc, and should have the same opportunity to present their case. This is influenced by inherent biases, whether the legal system disadvantages specific groups and whether individuals are considered equally under the policy.

Examples include:

• Everyone is entitled to legal representation
• The rule of law
• Minimum fixed sentences

Question 21

Access

Answer 21

This principle requires that individuals can appropriately use and apply the legal system, necessary for promoting legal education. This is influenced by the access available to representation, the cost and delays of cases, the extent to which communities understand cases, and the formality of processes.

Examples include:

• availability of interpreters
• VLA
• the court hierarchy
• jury duty

Question 22

Victorian Legal Aid - Explain its’ roles as a support body

Answer 22

Victorian Legal Aid is a government administered agency that operates in offices throughout Victoria, existing to provide cost-friendly and efficient legal advice, education and assistance, on an equitable basis. Outside of cases, it acts as an advisor to the government on issues of law reform, runs several legal education programs and organises funding for grants of legal assistance.

Services include:
- Free legal information over the processes of a trial and basic legal principles that it’s founded on, available online and in-person, for everyone
- Free legal advice over what happens in court and how the law will be applied, prioritising vulnerable individuals in society
- Duty lawyer services, in the Magistrate’s and Children’s Court, who can represent or advise individuals who satisfy the income test and are charged with a significant offence
- Grants for Legal Assistance, for either a VLA Lawyer or private practicioner recommended by VLA, for individuals who satisfy the means and merit tests

Question 23

Community Legal Centres - Describe its’ role in supporting legal services

Answer 23

Community Legal Centres are independently run organisations, funded both privately and by the government (primarily Victorian legal aid), that exist to provide free legal services for the community. There are 46 in Victoria, and they can be classified as either general (centres that provide broad legal services to individuals living in a specific geographic area) or specialist (centres that provide tailored services to individuals belonging to a specific group, or in a case relating to a specific area of law).

Roles include providing..
- Free legal information, available to everyone
- Free legal advice and assistance in preliminary trial procedures, some allowing for spontaneous legal appointments
- Duty Lawyer Services, for urgent one day matters
- Ongoing casework - incredibly rare, and in most places is not available for indictable offence

Question 24

Victim Support Services

Answer 24

VLA - CLCs
- Free legal information - including fact sheets
- Legal advice over how case will run, assistance for pre-trial procedures (VLA - for seeking compensation)
- Duty Lawyer Services for individuals seeking a personal safety intervention order, prioritising children and individuals with disabilities (family violence intervention orders too - CLCs)
- Grants for legal assistance - only for personal safety and family violence intervention orders - VLA
- CLC - Ongoing casework depending on case type and demand

Question 25

Evaluate - VLA

Answer 25

- Free legal information available for everyone, however it may not be sufficient enough to assist an individual with defending their case, especially if they're ineligible for other services - Free legal assistance allocated on an equitable basis, however, significant service gap means that individuals involved in more complex cases may not be given the attention they deserve - Legal information is presented in a variety of languages, with bilingual/trilingual staff members, however, is dependent on government/private funding - not entirely reliable and could put even more constraints on resources

Question 26

Evaluate - CLCs

Answer 26

- Free legal information available for the community (including the Legal Handbook - comprehensive legal resource), however, the service gap means that individuals with more complex cases will likely be neglected - Information provided helps the public develop interest and an education over their rights in the legal system, however, many CLCs are limited to just servicing summary offenders - Diverse range of languages available for presentation of information, including interpreter services, however, limited numbers in staff and volunteers mean that again, resources are even more tightly constrained

Question 27

What are plea negotiations?

Answer 27

Plea Negotiations are pre-trial discussions that take place between the accused and the prosecution, commonly intended to result in the accused waiving their right to trial by jury and pleading guilty to less charges or a lesser charge. If the negotiations do not succeed, what was discussed cannot be used as trial evidence. This saves money and court resources, ensures an outcome for the prosecution, and prevents the victim from having to re-experience their trauma.

Question 28

What are the factors taken into consideration for plea negotiations?

Answer 28

- Is the accused fully willing to plead guilty? Would they like to contest the charges against them? - Is the prosecution’s case strong enough, and likely to succeed? - What is the victim’s views on the situation? Are they willing and/or comfortable testifying/giving evidence in court? - Is the accused self-represented? Are they accepting the plea bargain due to being unskilled/uneducated in legal procedures/processes?

Question 29

With reference to the principles of justice, evaluate the impact of plea negotiations

Answer 29

*Equality - Even though the accused may receive a lighter sentence from pleading guilty, a guilty plea still maintains the criminality of the offender, however, if there are any co-accused, and the accused accepts a plea bargain, they will be sentenced drastically differently from other accused persons.* - Eg. The Kudla Shed Case - Marco Yandle, initially charged with murder - later charges lowered to assisting an offender, pleads guilty and is sentenced to a 20 month $500 good behaviour bond. His father - Keith Yandle - has plead not guilty and is expected to face a very different sentence, if he ends up convicted. *Fairness - Accepting a plea bargain is taken as an indicator of remorse, and offenders can receive very different treatment from apathetic offenders who have displayed no such behaviour, however, if an accused person is self-represented, they may feel more vulnerable to the system and pressured to accept a plea bargain, no matter whether they’re guilty or not.* - Whilst vacationing, after experiencing an unfortunate tragedy, Gabe Watson was indicted for his wife, Tina's, murder. He accepted a plea bargain and his charges were lowered to a charge of manslaughter, which he served 18 months for - returned to home state of Alabama, where he was again tried for murder, but declared not guilty. When interviewed, he claimed that without a plea bargain, he would have spent years in remand awaiting for his trial to begin, which would only discover that he had breached his duty of care to his wife. *Access - Guilty pleas streamline court procedures, saving the courts time and resources and allowing other accused persons to access the system at an earlier date, however, although victims may be consulted, their feelings’/opinions are often not given too much merit, which can build up resentment for the system/feelings that justice wasn’t served.* - Kudla Shed Case - Murphy's family feel as though that justice has not been served appropriately - vocalised their dissapointment with the system

Question 30

Victorian Court Hierarchy

Answer 30

Magistrate - all summary offences, indictable heard summarily, pre-trial proceedings - no appellate jurisdiction County - all indictable except murder, attempted murder, conspiracy to murder and corporate offences - magistrate court for conviction or sentences Supreme Court- most serious indictable offences - Magistrate’s court on the application and interpretation of law Supreme Court of Appeal - n/a - County or Supreme Court

Question 31

Reasons for Court Hierarchy - 2

Answer 31

**Appeals** **If the**re’s appropriate grounds (eg. question of law, conviction or severity of sentence), a party unsatisfied with a decision made in court, can challenge it as the appelant, taking it to a higher court for review.

Question 32

Reasons for Court Hierarchy - 1

Answer 32

**Courts** have expertise in specific areas of law. Legal personnel tend to work within a specific division, and then develop knowledge on that area, as a result. - Supreme (Appeal) - expertise in reviewing decisions made and identifying/resolving common trial errors - Supreme (Trial) - especially specialised in more complex evidence procedures - County Court - managing the jury and particular indictable offences - Magistrate’s - quickly and efficiently delivering just outcomes

Question 33

Other reasons for Court Hierarchy

Answer 33

- **Admin**instrative convenience - efficient time and resource management - Doctrine of precedent - consistent outcomes - Time and money - Streamlined processes in the Magistrate’s Court means it can hear more cases in days, then other courts could in months

Question 34

POJ - Court Hierarchy

Answer 34

**Access** - Yes - Courts can specialise in specific cases, and efficiently allocate resources and streamline procedures based off this No - Complexity behind the number of courts can be confusing, especially difficult if an accused person is self-represented and doesn’t know where to appeal to **Fairness -** Yes - Appeals mean just outcomes can be delivered by reviewing the case and any errors made **Equality** - No - No automatic right to appeal, on a case by case basis - self-represented are at disadvantage as they don’t know how to develop grounds for appeal

Question 35

Judge and Magistrate

Answer 35

- They must act impartially, without bias or apprehension of bias, where they can’t show special treatment to anyone or have any connections to any of the parties - They must manage the trial effectively, ensuring that court procedures are adhered to and determining whether evidence in admissable or not - They have different roles in the outcome of the trial - (Magistrate - listens to accused and determines a verdict) (Judge - ensures jurors understand their roles and principles of the court system) - They must sentence the offender, considering the impact of the offence on the victim and submissions provided by the parties

Question 36

Commital Proceedings

Answer 36

Before an indictable offence proceeds to trial in a higher court, a commital hearing is held in the Magistrate’s Court. The hearing occurs to determine elibility for indictable offences to be heard summarily, and whether the prosecution has enough evidence to pursue a trial.

Question 37

Jury Roles

Answer 37

- **they** must be objective and unbiased about the case - they must remember and make sense of evidence - they must ask for assistance when necessary about complex legal terminology, but do their best to understand and comply with directions on their own - They must deliberate with other jurors to reach a unaminous or majority verdict

Question 38

The need for legal practicioners

Answer 38

- Legal practicioners can assist the accused with navigating the complexity of the system - the principles, terminology, etc. - especially as they lack the skills/experiencing in handling plea negotiations, examinations, opening/closing addresses. - Parties cannot be objective to what the best decision will be about their case - emotional investment may lead to irrational decisions, outbursts during cross-examination, and presenting evidence in a way that is unlikely to succeed - therefore, the legal practicioner can extend that objective lens into the case - If the accused is represented by a legal practicioner it prevents the circumstance of the accused having to cross-examine witnesses/victims who may have trauma associated with them - if the victim is classified as a vulnerable witness, the trial will be adjourned until a legal practicioner can examine the witness instead - The courts are required to explain specific legal procedures to the accused, but this duty does not extend to advocating for them, or informing them over the best strategy for the courtroom - leads to challenges in fairness

Question 39

What is a drastic move that the courts can take to avoid the problem of a self-represented accused?

Answer 39

Under Criminal Procedures Act, Section 197 - If the court is unsatisfied that the accused will be able to receive a fair trial without legal representation (typically for a serious, indictable offence), legal representation that they do not have the funds to acquire, as is the duty of the accused to prove, then the courts can adjourn the trial until VLA can provide them with said lawyer.

Question 40

Purposes of sanctions

Answer 40

**Rehabilitation** - Sanctions intend to both acknowledge and treat the underlying causes of offending, by shaping the accused’s attitudes to justice and their behaviour - both supporting the person, whilst still calling out the act. - ‘Read Along Dads’ program established so Dads imprisoned in a regional facility can record themselves narrating a book to their children, preserving important family connections that can continue to be fostered, upon the parents’ release **Punishment** - Retribution for the victim and society for the offender’s actions, through a suitable setence that adequately addresses the amount of harm the accused has caused. - This can prevent vigilante styled justice - which undermines evidence-based procedures, the rule of law, and can often escalate to overly violent confrontations **Deterrence** - Discourages both society from commiting similar crimes (general deterrence), and the offender from committing future criminal activity (specific deterrence) - General depends on whether society understands and recognises the severity of a sanction imposed, whilst specific depends on whether offenders indicate remorse or have no prior offenses (which may be a contributing factor towards rehabilitation, rather then specific deterrence, as it’s proven to be unnecessary) **Denunciation** - The courts expressing disapproval for the offender’s actions, typically through a severe sentence (on one of the upper-levels of the penalty scale), demonstrating to the community that this type of conduct will not be accepted by the courts. - Recently, offences involving forms of family violence or crimes motivated by hate/prejudice, have publicly received more serious sentences, as the courts wish to express that societal values have shifted to be more dissaproving to these acts. **Protection** - Intends to safeguard both the victim of the offence, and the broader community, from the offender and any future harm they may inflict. Longer custodial sentences may be issued if the safety of the victim/society is considered at risk.

Question 41

Fines - explain, purposes

Answer 41

A set amount of money that has to be paid to the state, as a penalty for committing an offence. The amount depends on the severity of the offence, and can be applied in accordance with set levels - 2-12 ( 2 is the highest, 12 is the lowest). When determining the severity of the fine the courts must consider; the financial status of the offender, whether additional orders have been imposed (orders to restore property of the victim should be prioritised over fines, if relevant), the harm caused by the offence, and whether the accused experienced any financial gain as a result of the offence. Purposes - - Punishment - To an extent, forces them to use their own money to pay the state - depends on the financial status of the offender and the cost of the fine (whether it is high enough to impose a burden, but reasonable enough for their financial situation) - Specific and general deterrence - Denunicates, to an extent, depending on whether the amount enforced is publicised on any major media outlets

Question 42

Community Corrections Order

Answer 42

Supervised, non-custodial sentences, that takes place within the offender’s own community, involving specific and core conditions curated to their level of offending. They can be enforced alongside a fine, or a custodial sentence of up to 1 year of imprisonment. Core conditions include: - the offender cannot commit another offence whilst serving the order - the offender must meet at their local community corrections centre and report their contact details within 2 days - must attend visits with their community corrections officer - must alert their officer of a change in their address or employment - cannot leave Victoria without permission Additional conditions can also include a specific number of hours for unpaid volunteer work , attending specific types of treatment for their rehabilitation, or non-association, where they cannot make contact with specific individuals (likely co-offenders) Punishment - can punish the offender to an extent, by forcing them to comply with specific directions and general monitorance - a lack of freedom Specific deterrence - conditions are specifically curated to prevent the offender from reoffending, and will create an environment where this behaviour won’t be possible - depends on length of sentence, and conditions imposed Rehabilitation - conditions such as treatment/counselling do specifically treat the causes behind offending, such as drug/alchol addictions - depends on participation and the offender’s support network - unpaid community work - could lead to job in the area where they volunteered - find example

Question 43

Prison - explain, purposes

Answer 43

A sanction that involves stripping the offender of their right to freedom of movement and liberty, by containing them in a confined facility, away from society with other offenders, for a set period of time. These sentences can be served either concurrently (serving two sentences for 2 different offences, at the same time - eg. if sentenced to 5 years for recklessly causing injury, and 2 years for going equipped to steal, they would still only serve 5 years), or cumulatively (serving sentences one at a time, eg. for previous example, they would serve 7 years in prison) - Punishment - achieved to a high standard, offenders can’t engage in community activities, cannot see family/friends according to their wishes, depends on length and the offender’s situation, where an individual who suffers from an intellectual disability may not understand the full severity of the circumstances - Specific deterrence - depends on above factors, and also the nature of time spent in prison, which may increase exposure to traumatic violent incidents, or can encourage co-conspirating with other offenders - Protection - achieved to a high standard, physically seperated from the victim and community and unable to inflict harm on them, factors such as being considered ineligible for parole can also secure safeguards for society - Rehabilitation - depends on variety of factors, but primarily the programs available, participation of the offender in these programs, and the length of sentence, where a harsher sentence may be incredibly affecting and can increase the likelihood of exposure to traumatic incidents or people, which may prevent for proper treatment

Question 44

Factors considered in sentencing

Answer 44

**Aggravating factors** - factors that increase the severity of the offence, leading to a more lengthy sentence - eg. offending in front of children, the brutal nature of violence used, how weapons were used (loaded/unloaded weapon), breaching trust (if they have an obligation/duty of care to someone) **Mitigating factors -** circumstances that reduce the severity of the offence, and can lead to a shorter sentence - eg. an early guilty plea, cooperation with the police, under threat to them or someone they knew (durress), background to the offender - trauma, domestic/family violence

Question 45

Victim impact statement

Answer 45

A statement submitted by the victim which outlines the ongoing impact/trauma of harm of the offence and the situation of the victim when harmed and after harm - includes details over the loss caused by the offence - eg. unable to return to past job or leave the house at nighttime

Question 46

Cost factors - impact on POJ