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Legal 3/4 > UNIT 4- AOS 2B > Flashcards

UNIT 4- AOS 2B Flashcards

1
Q

difference between criminal + civil law

A

the aims of the cases brought before the courts
criminal - punishing the offender
civil - achieving civil remedy for person who rights have been infringed

outcome
criminal- sanctions
civil - remedy

burden of proof
criminal - prosecution
civil - plaintiff

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2
Q

list purposes of criminal pre trial procedures

A
  • assist the police
  • protect the rights of the accused
  • provide rights to the police
  • provide an opportunity for the accused to be released pending trial
  • clarify issues
  • determine whether a trial should proceed
  • determine if the accused wishes to plead guilty or not
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3
Q

alternative outcomes for a person brought into custody

A
  • released
  • given cautioning notice
  • released pending summons
  • charged and released on bail
  • remanded
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4
Q

by whom can bail be granted by and where

A
  • police officer, a station where they are charged
  • magistrate, bail hearing in court
  • bail justice
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5
Q

examples of conditions of bail

A
  • reporting to police station
  • residing at an adress
  • submitting to curfew
  • accused can’t contact specific people
  • surrender passport
  • can’t drive motor vehicle or carry passengers
  • specifying locations where can not be
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6
Q

list criminal pre trial procedures

A
  • bail
  • remand
  • committal proceedings
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7
Q

Bail + its purpose

A

The conditional release from custody of a person accused of a crime + awaiting a hearing or trial, or an undertaking that the person will attend the hearing or trial, sometimes assurity is required.

The purpose of bail is to help ensure the presumption of innocence is enforced, unless the accused poses a serious threat to society

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8
Q

Remand + its purpose

A

when a person is held in custody awaiting a trial, during a trial or awaiting sentence
The purpose of remand is to protect the community against the actions of an accused person and the accused is protected from reoffending

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9
Q

committal proceedings + its purpose

A

the hearing that take place in Magistrates court for indictable offence, and is usually tried in county/supreme court
its purpose is to:
- determine whether evidence is of sufficient weight to support conviction
- ensure fair trial
- clarify issues
- determine how accused purposes to plead

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10
Q

prima facie

A

sufficient evidence to gain a conviction in a higher court before a judge + jury of 12

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11
Q

hand up brief

A
  • written statement in committal proceeding used instead of witnesses having to attend + give evidence
  • includes copy of charges, witness statements, intended documents of evidence
  • served to accused
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12
Q

strengths of bail

A
  • upholds presumption of innocence for accused until proven guilty
  • bail can be granted w/ conditions, court can create balance between rights of accused + protection of society by improving conditions
  • remand is expensive for state government - approx 204 per day per prisoner
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13
Q

weaknesses of bail

A
  • if accused is free within society there is risk that accused abscond or doesn’t appear at next court hearing
    preventing justice + incurring cost
  • risk they will reoffend or cause harm to community even w/ conditions, risking society
  • making bail applications is time consuming + stressful particularly if accused has previously applied for bail but denied
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14
Q

strengths of remand

A
  • ensures justice by keeping accused in custody, guaranteeing they will appear in court + not reoffend
  • remand protects society by removing accused from society preventing them from reoffending
  • remand ensures witnesses are protected + evidence is not impeded by accused.
    Ensuring natural justice takes place
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15
Q

weaknesses of remand

A
  • doesn’t uphold presumption of innocence, unfair if remanded w/o being guilty
  • once a person is imprisoned they are more likely to go back, exposing a person to imprisonment through remand increases risk of reoffending
  • remand is expensive for state government eg. 204 per day per prisoner
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16
Q

strengths of committal hearings

A
  • help to save the time/resources of higher courts by filtering out cases unlikely to succeed due to insufficient evidence
  • the onus is on protection to establish sufficient evidence to support conviction.
    If not established, accused is discharged supporting presumption of innocence
  • prosecution can withdraw/combine charges after considering evidence, particularly after committal mention stage. helps fair trial + save time of higher courts
17
Q

weakness of committal hearings

A
  • requiring services of legal rep = expensive for accused, who may not be working if remanded
  • add to delays of getting case to trial, same cases go directly to trial
  • for stronger cases may be unnecessary + burdensome adding extra stress for victims
18
Q

list aims of criminal sanctions (5)

A
  • punishment
  • deterrence
  • rehabilitation
  • community protection
  • denunciation
19
Q

aims of criminal sanctions - punishment

A

offender should be punished to extent in such manner that is just in all circumstances and to ensure society feels as though there has been retribution

20
Q

aims of criminal sanctions - deterrence

A

the sanction should deter offender or community of the same or similar offences
If people could commit crimes freely w/o the threat of punishment, law + order would not be maintained
general = community
specific = offender

21
Q

aims of criminal sanctions - rehabilitation

A

A court will consider sanctions that could help the accused to rehabilitate. One aim of sanctions is to assist offenders to change their attitudes + be ready to take their place in society. eg. bond or CCO

22
Q

aims of criminal sanctions - community protections

A

in cases offender needs to be removed from society to be physically prevented from reoffending.
Non custodial sentences such as CCO can be seen as protecting community by keeping offender busy

23
Q

aims of criminal sanctions - denunciation

A

refers to the disapproval of the court

A particular punishment may be given to specific crime to show courts disapproval

24
Q

criminal sanctions - imprisonment + aim

A

includes people who have been convicted of a crime can be sentenced to be detained in jail for period of time, meaning loss of freedom + liberty
aim:
- remove offender from society,acting as protector
- aim to rehabilitate
- act as general attendance

25
Q

criminal sanctions - community corrections order CCO + aim

A

A supervised sentence in the community + includes special conditions such as treatment + unpaid community work for number of hours
aim:
- give offender opportunity to put a stop to criminal behaviour + undergo treatment to take part in programs to rehabilitate

26
Q

criminal sanctions - fines + aim

A

A monetary penalty paid by the offender to the court, which is often a prescribed fine for particular offence

aim:
- punish offender by requiring them to pay as specific deterrence to prevent reoffending
- general deterrence to society
- extreme high fine may denounce specific crime

27
Q

criminal procedures - problems (3)

A
  • suspects often unaware of rights when detained/questioned/cautioned and can be unaware that statements can be incriminating
  • accused’s rights to silence challenged by judges who believe that a jury is entitled to interpret as sign of guilt
  • placing suspects in remand may been as judgement and not upholding presumption of innocence
28
Q

criminal procedures - possible solutions (3)

A
  • changes to crimes act to allow police to arrest on reasonable grounds w/o warrant to assist investigation
  • fingerprints,sole prints or palm prints used to help police find correlations between crime and actual suspect
  • a wider variety of sanctions for cases to ensure individual circumstances are taken into account when sentencing
29
Q

entitlement to a fair + unbiased hearing - promotes

A
  • bail, upholds presumption of innocence

- committal proceedings, enables accused to learn of prosecutions case against them to help prepare their defence

30
Q

entitlement to a fair + unbiased hearing - problems

A
  • bail, may not be granted if remanded

- resources, accused does not have the same time and expert resources as the court to provide an equitable case

31
Q

entitlement to a fait + unbiased hearing - recent/recommended changes

A
  • WITNESS PROTECTION AMENDMENT BILL 2016, creating a new offence of regulating intimidation of witnesses to ensure they aren’t swayed etc. (recommendation)
  • KOORI COUNTY COURT, sentencing court for indigenous offenders, who have pleaded guilty to a crime within jurisdiction of county court
32
Q

effective access to legal system - promotes

A
  • COURTS, available for all to use in criminal matters with access in metropolitan and regional areas and are specialised in types of cases they hear
  • APPEALS, if an incorrect or unfair decision occurs either party is able to appeal decision/sentencing provided they have the grounds for appeal
33
Q

effective access to legal system - problems

A
  • GEOGRAPHY, distance + transport can affect access to face to face legal services if living rural
  • AWARENESS OF LEGAL RIGHTS, need to know their rights, some are unaware such as appeals or legal aid
34
Q

effective access to legal system - recent/ recommended changes

A
  • JUSTICE LEGISLATION (EVIDENCE + OTHER ACTS) AMENDMENT BILL 2016, covering the use of audiovisual links for giving evidence (recommendation)
  • MAGISTRATES COURT OF VIC INITIATIVES NOV 2013, weekend sittings to enable those remanded to come before court at earliest opportunity for bail application
35
Q

timely resolution of disputes - promotes

A
  • COMMITTAL PROCEEDINGS, ensure accused don’t have to wait long for trial when their is insufficient weight to support conviction. Superior courts won’t be clogged by cases that won’t succeed
36
Q

timely resolution of disputes - problems

A
  • COMMITTAL PROCEEDINGS, add to delays calling for some committals to be abolished
  • COLLECION OF EVIDENCE, police may experience difficulties collecting evidence/locating witnesses = delays
37
Q

timely resolution of disputes - recent/recommended changes

A
  • MAGISTRATES COURT OF VIC INITIATIVES NOV 2013, weekend sittings to enable those remanded to come before court at earliest opportunity for bail application

Legal 3/4 (12 decks)

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