Flashcards in Unit 4: AOS 2- Criminal Procedure Deck (24):
Explain the right to silence
The right to silence is that the accused is pressumed innocent until proven guilty and has the right to remain silent both during the investigations and court proceedings. Suspects are able to remain silent other than giving their name and address to the police when required. They also are able to remain silent when being questioned or cross-examined in a trial. It protects the accused from saying anything incrimminating This ensures a fair and unbais trail as it upholds the fairness of basic human rights
Bail is the conditional release of an accused prior to trial.
A person charged with an offence has the right to appeal to be released on bail until their trial.
If bail if refused then they will be held on remand.
Bail may be granted at various stages of the criminal process.
Bail can be granted by a police officer, a magistrate or a bail justice.
Explain Committal Proceedings
Committal proceedings take place in the Magistrates court for persons accused of indictable offences that will be heard in the Supreme and County Court. A committal proceeding will determine whether a case is ready for trial.
Remand is where an individual has been refused bail and will be held in custody until the case comes to trial or until bail is granted in the future
What is a surety
A surety is another person over the age of 18 who is prepared to guarantee that the accused person will attend court. This surety can be potentially issued a fine if the accused does not appear in court on the set date.
What is the purpose of remand
-Protect the community against the actions on an accused person. The community is protected as the accused person is prevented from reoffending as they are held in custody whilst awaiting trial.
-Ensure the court that the accused will appear at the next hearing so that the accused is tried for the offences in which they have been charged.
-Prevents accused from interfering with witnesses or obstructing the course of justice.
What is the purpose of committal proceedings
-Determine whether the evidence against the accused is of sufficent weight to support a conviction by a jury at trial in the County Court or Supreme Court. This is also referred as establishing whether a prima facie case exists.
-Ensure a fair trial as it allows for the prosecutions case against the accused is adequately disclosed.
-Determine how the accused proposes to plead to the charge/s.
Evaluate/Discuss Bail and how it allows for an effective legal system
-A strength of bail is that it upholds the assumption of the principal of innocence until proven guilty. Therefore this allows for a fair and unbias hearing as the accused is given an opportunity to take part in preparing their case. However a weakness of bail is that the individual may reoffend or cause harm or society, which would not allow for a fair and unbiased hearing.
-Another strength of bail is that it allows for a fair and unbiased hearing through the fact that it prevents the accused from being exposed to negative influences when kept in remand. However a weakness is bail could allow doe an accused to obstruct justice and interfear with evidence and witnesses. This would hinder the element of a fair and unbiased hearing.
Evaluate/Discuss Remand and how it allows for an effective legal system
A strength of remand is that it protects the community against the actions of an accused person. The community is protected as the accused person is prevented from reoffending as they are held in custody whilst awaiting trial. This creates an effective legal system as it upholds the element of a fair and unbiased hearing. However a weakness of remand is that it does not allow for a fair and unbiased trial in a way due to it does not uphold the pressumption of innocence.
-Another strength of remand is that justice can be achieved as guaranteed the accused will appear at trial. This allows for an effective legal system as it ensures for a timely resolution. However a weakness of remand is that it affects the accused ability to help prepare for their trial. This does not allow for a fair and unbiased hearing.
Evaluate/Discuss Committal Proceedings and how it allows for an effective legal system
-A strength of committal proceedings is that it saves the time and the resources of higher courts by filtering cases that are unlikely to succeed due to insufficent prosecution evidence. This can help to achieve a timely resolution of the case.
-However a weakness of committal proceedings is that they can actually add to delays of getting a case to trial which goes against a timely resolution. This can be due to if the accused chooses to cross examine witnesses, which can lead to delays.
-Another strength of committal proceedings is that it allows the accused to become informed of the prosecution case against them and they may result in a change in plea, this allows for a timely resolution espically if they change their plea to not guilty. However a weakness of committal proceedings is that legal representation is required and it can be expensive. This also goes against a fair and unbiased hearing as parties may have unequal legal representation.
Imprisonment is the incarceration of a person for a specific period of time.
A monetary penalty paid by the offender to the Court. There is often a prescribed fine for a particular offence mentioned in the Act that establishes the offence. Fines are usually expressed in levels (1-12). Each level refers to a number of penalty units.
A community Corrections Order (CCO) is a supervised sentence that is served in the community. CCO's are accompanied by general conditions such as not committing another offence punishable by imprisonment. There also can be specific conditions attached such as unpaid work for a specific number of hours.
List and describe each of the general aims of sanctions
Punishment: Offender should be punished to an extent in such a manner that is just in all the circumstances and so that society can feel there has been retribution.
Deterrence: Deter the offender or other people from committing similar offences. No order if no punishment. Specific and General deterrence.
Rehabilitation: Assist offenders to change their attitudes and be ready to take their place in society.
Denunciation: Disapproval of the court.
Protection: protects the community from the offender, offender has been required to be removed from society.
Discuss the ability of fines to achieve the aims and purpose of being a sanction
Fines achieve the purpose of deterrence by granting the accused with a monetary penalty. They can act as a specific deterance in that they can deter the offender from committing the same offence again. As well as it can act as a general deterance as it may deter memebers of the community from committing similar crimes. however fines as a sanction may not achieve this purpose if the fine is not of a high enough value.
Fines also achieve the purpose of denunciation, as when a large fine has been imposed it allows for the courts to express disapproval. However fines do not achieve this purpose if the case has not been reported on.
Discuss the ability of CCO'S to achieve the aims and purpose of being a sanction
-Achieve the purpose of protection of the community. This is due to that CCO's occupy's the offender's time and therefore prevents them from reoffending. However CCO's may not achieve this purpose as the offender is still amongst the community and is not off the streets therefore they have the opportunity to reoffend.
-CCO's also achieve the purpose of rehabilitation as they may be ordered to commit specific rehabilitation programs which address the underlying causes of the offending. This could include programs such as vocational or drug treatment. How this aim of CCO's will not achieve it's purpose if the offender does not comply with the conditions set by the courts.
What are some of the circumstances in which bail can be refused.
-charged with murder or treason
-drug trafficking of commercial quantities.
-considered to pose an unacceptable risk to society.
Explain two recent changes to the legal system and how they allow for an effective legal system
-The Justice Legislation Amendment (Parole Reform and other matters) Act (2016). This Act amends the Corrections Act (1986). It does this by providing for the presumption against parole for the prisoners serving terms of imprisonment for certain fatal offences where the victim is a police officer or where the body and remains of the victim have not been located. This change allows for an effective legal system as it aims to create a fair and unbiased hearing through the presumption of innocence.
-Another recent change to the legal system is changes to Victoria's Bail Laws. These amendments will allow for a "presumption against bail" for a range of violent and sexual offences. Also The role of volunteer bail justices will be limited, as well as After-hours magistrates' courts will become new "bail and remand courts". Police will be given more powers to remand people. This allows for a more effective legal system as is it protects the community against the actions of an accused person. The community is protected as the accused person is prevented from reoffending as they are held in custody whilst awaiting trial. This creates an effective legal system as it upholds the element of a fair and unbiased hearing.
If the committal is contested what will the magistrate need to know
No. of witnesses and cross examined helps them to put in a time frame as to how long the committal proceedings will take, therefore will reduce delays.
Explain what a hand up brief is and what is it's purpose?
The hand up brief is a collection of written statements from witnesess and the accused. Largely eliminated the use of oral evidence. Allows for a timely resolution. Handed to the magistrate in the magistrates court.
Outline some of the conditions of bail
-Reporting to a police station
-Residing at a particular address
-Submitting to a curfew
explain the difference between remand and bail
-degree of freedom
-presumption of innocence
Explain the purpose of bail
Allow an accused person to go free until the hearing or trial as a person is presumed innocent until proven guilty. Granting bail also allows the accused person time out of custody to prepare their case