Unit 4 AOS2b - Chapter 8: Criminal Procedure Flashcards Preview

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Flashcards in Unit 4 AOS2b - Chapter 8: Criminal Procedure Deck (160):
1

Distinguish between the consequences of a case, remedy/sanctions and burden of proof in criminal and civil law.

Consequences of the case - criminal aimed at punishing and civil aimed at compensating.

Sanction/remedy - accused pleads guilty or not guilty and if found guilty a sanction is applied. The plaintiff (individual or group) tries to obtain a civil remedy.

Burden of proof - criminal (investigated by the state and is between the state and the individual) and civil (usually between individuals or groups and is initiated by the person who has been wronged).

2

What is a crime?

A crime can be described as an act or omission that is against the law, harmful to an individual or society as a whole and punishable by law.

Society sets guidelines for acceptable behaviour, and if those guidelines are broken, society expects that the offenders will be punished. Another term for a crime is an offence.

3

What are the elements of a crime?

For a crime to be committed there needs to be a guilty act (actus reus) and a guilty mind (mens rea). A person is said to have a guilty mind when he or she intends to commit the offence.

This is true in all cases except those of strict liability. This is where the prosecution does not have to prove that the offender intended to commit a crime, such as underage drinking in a public house or drink driving.

4

What is the age of criminal responsibility?

A child under the age of 10 years cannot be charged with a crime because it is presumed that he or she cannot commit an offence.

It is also presumed that a child between the ages of 10 and 14 years is mentally incapable of committing a crime, because they are not able to form the intention (mens rea) to commit the offence.

This is known as doli incapax. This principle can be overturned if it can be shown that the child understood that what he or she was doing was wrong.

5

What are the types of crimes?

. Summary offences
. Indictable offences heard summarily
. Indictable offences

6

What is a summary offence?

Summary offences are minor crimes that are heard in the Magistrates’ Court and before a magistrate, but not before a jury.

Many summary offences are found in the Summary Offences Act 1966 (Vic.) and include crimes such as drinking in a public place and aggravated assault. States also have further legislation that create other summary offences, Summary offences are minor crimes that are heard in the Magistrates’ Court and before a magistrate, but not before a jury. Many summary offences are found in the Summary Offences Act 1966 (Vic.) and include crimes such as drinking in a public place and aggravated assault.

7

What is an indictable offences heard summarily?

Some indictable offences are able to be heard in the Magistrates’ Court as if they were summary offences. These are known as indictable offences heard summarily.

These cases have the right to be tried before a judge and a jury of 12, but with the permission of the court and the parties they can be heard a single magistrate.

8

What is an indictable offence?

Indictable offences are serious crimes that are heard before a judge and jury. The most serious indictable offences are heard in the Supreme Court and include offences such as murder, manslaughter, treason and culpable driving. Other indictable offences are heard in the County Court.

9

What are the parties involved in a criminal case?

Once a crime has been committed, it is the state that usually prosecuted the offender. Although rare, a prosecution can also be brought by a private citizen. The Director of Public Prosecutions (DPP) commences and pursues criminal cases on behalf of the State of Victoria.

The person who faces court charged with an offence is called the accused. The accused is normally an individual, but in some circumstances can be a corporation, such as a corporation running a food business that is charged for offences related to food safety.

10

Explain prosecutions of indictable offences.

The Office of Public Prosecutions (OPP), together with the Director of Public Prosecutions (DPP) and Crown Prosecutors, is responsible for prosecuting serious crimes in Victoria. Most of the prosecutions are referred by Victoria Police. The matters referred to the OPP for prosecution in the courts generally involve:
• murder
• manslaughter
• culpable driving
• serious assaults, including sex offences
• aggravated burglaries
• armed robberies
• assistance in coroner’s inquests.
The OPP is also responsible for preparing and conducting appeals in the County Court and Supreme Court.

Matters are sometimes referred to the OPP from other agencies such as WorkSafe, relating to deaths or serious injury in workplaces, and the Department of Primary Industries, relating to poaching and other fisheries crimes.

The Specialist Sex Offences Unit provides specialists to assist in the prosecutions of sex offences in Victoria and to ensure that sexual assault matters progress through the court process as quickly as possible.

11

Explain prosecutions in the magistrates court.

Prosecutions in the Magistrates’ Court are conducted by Victoria Police and by other agencies, such as VicRoads, local councils and Corrections Victoria, who have the authority to prosecute summary offences.

The OPP is responsible for presenting all relevant evidence at a committal hearing in the Magistrates’ Court for indictable offences.

12

What is the burden and standard of proof in a criminal trial?

In a criminal case, the prosecution has the burden of proving the case beyond reasonable doubt (the standard of proof in a criminal case). Reasonable is what the average person in the street would believe to be the case; that is, when the evidence is looked at in a logical and practical manner.

In some instances, the burden of proof is reversed, such as with strict liability crimes. In these types of offences the burden of proof is reversed and the accused must prove that he or she did not commit the crime.

13

What is the difference between criminal and civil law?

The main difference between civil and criminal law, lies in the AIMS of the cases brought before the courts. A criminal case is aimed at punishing the offender, whereas a civil case is aimed at achieving a civil remedy (usually compensation) for the person whose rights have been infringed.

In a criminal case, the accused pleads guilty or not guilty. If he or she is found guilty, he or she is given a SANCTION (punishment) such as a fine. In a civil case, the person or group who has suffered injury or loss tries to obtain a civil REMEDY from the person determined to be in the wrong.

Criminal cases are usually investigated by the police and a state prosecutor and are between the state and an individual. Civil cases are usually between two individuals or groups and are instigated by the person or group that has been wronged.

The state can be part of a civil case if the state is suing an individual or group, or if an individual or group is suing the state.

14

Explain the commencement of a criminal case.

When a crime has been committed, the state usually prosecutes the offender for the offence committed. A prosecution can, however, be brought by a private citizen, although this is rare, often because it is very expensive.

A criminal case can only be tried through the court system. Tribunals such as the Victorian Civil and Administrative Tribunal (VCAT) are not available to hear and determine criminal cases. Before a criminal case is commenced through the courts, a significant amount of time and effort will go into investigating the crime and gathering evidence.

15

What is police investigation?

Once the police receive information about the commission of a crime they are required to investigate the offence and surrounding circumstances.

The accused is presumed innocent until proven guilty, and in order to protect suspects from unfair treatment, a suspect has certain
rights during police investigation. However, so that society can keep functioning in an orderly way, a person who has offended has to be
apprehended and convicted.

There is therefore a need to balance the rights of the individual, who needs to be protected from unfair and unduly harsh treatment, with the rights of the police who have to investigate a crime. The community has the right to expect that someone who has committed a crime against the community will be apprehended and punished.

16

What can happen after police investigation?

A suspect can be:
. Exonerated - no further action
. Released pending summons
. Charged and released on bail
. Charged and brought before the Magistrates' Court or a bail justice for a bail hearing (where there are either released on bail or held on remand)
. Given a caution notice on condition to be on good behaviour

17

What is the purpose of police investigation?

The purpose of police investigation is to determine who did and did not commit the criminal act reported, charge the suspect and gather evidence for the prosecution to use in their court case against the accused.

18

What happens during questioning?

During questioning, the individual has the right to be informed by the police of the charge and of their rights. The suspect also has the right to ask police officers for their name, rank, identification and station.

The police have the right to ask a person’s name and address in certain circumstances, ask a suspect to accompany them to the police station, question a suspect for a reasonable time and apply for a coercive questioning order from the Supreme Court.

19

Summarise police investigation.

Crime ➡️ Investigation ➡️ Suspect ➡️ Located ➡️ Questioning by police

20

What are the rights of individuals during police questioning?

Right of individuals during police questioning include:
. Being informed by police of the charge
. Being informed by the police of their rights
. Asking police officer for their name, rank, identification number and station
. The right to remain silent
. The right to communicate with lawyers, family or friends before questioning
. The right to an interpreter
. The right to be released unconditionally or on bail, or brought before a magistrate with in a reasonable to
. Being able to see any written statements
. Having a parent, guardian or adult present if under 18 years of age
. Being able to refuse to accompany a police officer to the police station unless being arrested
. Being able to refuse to take part in an identification parade
. Being able to refuse to participate in the reconstruction of a crime
. Being able to refuse to have photographs taken
. Being able to refuse to provide body samples
. Being able to refuse to supply voice prints
. Being able to refuse to allow search of property unless police have a warrant or if they reasonably expect to find drugs

21

Explain the following right of individuals during police questioning: the right to remain silent

The accused is presumed innocent until proven guilty and has the right to remain silent both during the investigation of the crime and during the court proceedings. Suspects are entitled to remain silent when being questioned by the police – other than giving their names and addresses when required.

Suspects also have the right to stay silent when being questioned, or cross-examined, during their trial. At the trial a judge must inform the jury that they must not conclude that the accused is guilty because he or she has chosen not to speak, although the jury might ignore this advice.

The prosecution or trial judge must not make any inference about the fact that the accused has chosen to remain silent.

22

What are the police powers?

. Question subjects for a reasonable time (reasonable time for murder and burglary charges are different)
. Demand name and address of a suspect or a person that can help with the investigation and licence number if driving
. Question witnesses and victims
. Ask suspects to accompany them to the police station
. Take fingerprints of persons over 15 years
. Take blood and body samples with consent or a court order
. Search a car of police have reasonable ground that the vehicle contains a drug of dependence
. Search a person or package if there is reasonable belief that the person is carrying a "prescribed weapon"
. Arrest with or without a warrant
. Use reasonable force to make an arrest
. Suspend a driver's license on the spot for refusing to take a preliminary breath test or if the drivers BAC > 0.15%
. Use listening devices or tap phones with court permission
. Hold an identification parade
. Engage in entrapment
. Reconstruct a crime if the subject agrees to participate

23

Flow chart in criminal procedure.

Crime ➡️ investigation ➡️ suspect located and questioned ➡️ charge ➡️ summons

Charge ➡️ charged and released on bail
⬇️
Charge and remand application made ➡️ released on bail
⬇️
Remand

24

What are criminal pre-trial procedures?

Pre-trial procedures are the processes and procedures that occur before a trial commences in a criminal case in the County Court or Supreme Court.

When a crime has been committed and reported to the police, the police will investigate the crime to identify the offender. Criminal pre-trial procedures commence once a suspect has been found.

Criminal pre-trial procedures include bail, remand and committal proceedings.

25

What are the purposes of criminal pre-trial procedures?

. 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 guilty

26

Explain the following purposes of criminal pre-trial procedures:
. Assist the police
. Protect the ruts of the accused
. Provide rights to the police
. and Provide an opportunity for the accused to be released pending trial.

. Assist the police in identifying evidence for the prosecution of the person or persons suspected of committing the crime under investigation.

. Protect the rights of the accused and ensure that he or she is treated as innocent until proven guilty.

. Provide rights to the police to facilitate police investigation.

. Provide an opportunity for the accused to be released pending trial, although this right may be denied in certain circumstances.

27

Explain the following purposes of criminal pre-trial procedures:
. Clarify issues
. Determine whether a trial should proceed
. Determine if the accused wishes to plead guilty or not guilty

. Clarify issues – some pre-trial procedures are designed to narrow the issues that need to be determined at the trial, for example determining what facts the accused admits and does not admit.

. Determine whether a trial should proceed – that is, if the evidence is of sufficient weight to support a conviction by a jury at trial

. Determine if the accused wishes to plead guilty or not guilty – provide the accused with the opportunity to plead guilty at an early stage and thereby receive a lighter sanction. An early plea is also a benefit to the legal system, because it can reduce the number of trials and speed up the whole process.

28

What are the alternative outcomes for a person brought into custody?

Once a person has been brought into custody, the alternatives for future dealings are that the person is:
. Released - the police can release a person without charging him or her with a crime
. Given a cautioning notice
. Released pending summons
. Charged and released on bail
. Remanded

29

Explain the following alternative outcome for a person brought into custody: given a cautioning notice

Once a person has been brought into custody they can be given a cautioning notice on the condition that they will be of good behaviour for the next five years – for first-time offenders involved in minor offences.

The offender must admit to the crime, co-offenders must be identified and the crime should involve no more than five incidents. If a further crime is committed within five years, the offender goes to court and the caution note is treated as a prior conviction

30

Explain the following alternative outcome for a person brought into custody: released pending summons

The suspect can be released pending the charge and summons being served on the suspect at a later date, telling him or her which court to attend and the time of the hearing.

31

What is bail?

Bail is when the accused is released from custody after being charged on condition that they appear in court at a later date. A person charged with an offence has the right to apply to be released on bail until their trial. If bail is refused, then they will be held on remand (in jail awaiting trial).

Bail may be granted at various stages of the criminal process – at the time of arrest, during the trial and while awaiting sentencing or an appeal. These procedures are the same regardless of which court an accused person will be tried in.

32

More on bail.

Most accused are granted bail and released on their own undertaking (a promise to appear in court when required).

Alternatively the accused may be released if a surety promises to pay a sum of money if the accused fails to attend court.

A surety is another person over the age of 18 who is prepared to guarantee that the accused person will attend court.

33

Who can grant bail?

Bail can be granted by:
• a police officer at the police station when a person is charged
• a magistrate at a bail hearing in the Magistrates’ Court – court registrars also have the power to
fix bail in some criminal cases (the Supreme Court hears bail applications for murder charges)
• a bail justice – a bail justice is appointed by the attorney-general to decide whether an accused
person is eligible for bail.

34

What might a person be asked to do before they are granted bail?

a person is granted bail they may be asked to:
• provide their own undertaking that they will appear in court on a later date, without the imposition of any other conditions
• provide their own undertaking that they will appear in court, with the imposition of conditions
• provide a surety who will guarantee that they will attend court, with or without the imposition of
conditions.

Money deposited with the court by the accused, or a surety, will be forfeited if the accused does not attend court, although there may be circumstances when this forfeiture can be opposed.

35

What conditions may be imposed on someone who is granted bail?

The Bail Act was amended in 2013. Under the Bail Amendment Act 2013 (Vic.), it is now necessary to make it clear what conditions may be imposed on a person who has been granted bail. The conditions include:
• reporting to a police station
• residing at a particular address
• submitting to a curfew
• that the accused not contact specified persons or classes of persons
• that the accused surrenders his or her passport
• that the accused not drive a motor vehicle or carry passengers when driving a motor vehicle
• specifying locations or zones that the accused must not visit or may only visit at specified times.

36

What can happen if bail is not granted?

If bail is not granted, an accused can lodge an appeal with a higher court for a bail hearing.
An arrest warrant is issued if these bail undertakings or conditions are not met or if the person does not appear for their court date.

37

What is the purpose of bail?

The Bail Act 1977 (Vic.) lays down the major rules relating to the granting of bail. The main aim of granting bail is to 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.

Someone who is not granted bail will be kept in remand until the trial; that is, kept in the remand section of prison. Under the Bail Act it is assumed that bail will be granted unless there is a specific reason to refuse bail (that is, if there are exceptional circumstances).

38

What are the considerations when granting bail?

• charged with murder or treason (although bail is given in some exceptional circumstances)
• charged with drug trafficking under the Drugs, Poisons and Controlled Substances Act 1981 (Vic.) or the Customs Act 1901 (Cth) (unless there are exceptional circumstances or the amount of the drug is less than the proscribed amount)
• already in custody for another crime (although the person can be released on bail after the expiration of the sentence)
• considered to pose an unacceptable risk to society or is likely to:
– abscond
– commit an offence while on bail
– endanger the safety or welfare of members of the public
– interfere with witnesses or otherwise obstruct the course of justice in relation to themselves or
to others.

39

When will the court refuse bail?

A court will refuse bail if the accused is charged with the following crimes, unless the accused can show a reason why their detention in custody is not justified:
• an indictable offence that is alleged to have been committed while he or she was at large awaiting trial for another indictable offence
• a stalking or family violence offence and the accused has been convicted of a similar offence in the previous 10 years or the court is satisfied that the accused used or threatened to use violence against the victim in the current case
• aggravated burglary, or another indictable offence in which it is alleged that the accused used a firearm, offensive weapon or explosive
• arson causing death
• drug offences.

40

What must the court provide if it grants bail to anyone who has committed a crime which can permit the refusal of bail?

The court must provide a statement of reasons.

41

What is examined when considering whether granting bail to a person is an unacceptable risk to society?

The accused’s past history, character, home environment, possible hardships that might be caused, the seriousness of the crime, and the strength of evidence against the accused are examined when considering whether granting bail to a person is an unacceptable risk to society.

42

What is remand?

Someone who is refused bail will be held on remand until the case comes to trial, or until bail is granted in the future. This means they are held in custody. Men who are remanded in custody are generally sent to HM Melbourne Assessment Prison. Women are usually sent to the Dame Phyllis Frost Centre.

43

Where a children on remand sent?

Children on remand may be sent to a youth justice centre, but they cannot be held on remand for longer than 21 days before they must go to court. This means that a child on remand must be brought before the court every 21 days.

44

Extra info on remand.

If a person who has been held on remand is later found guilty, the time in remand will be deducted from any prison sentence given. Someone who is found not guilty is not usually entitled to compensation for the time in prison. Bail is therefore usually granted and is refused reluctantly.

45

What is the purpose of remand?

The purpose of remand is to protect the community against the actions of an accused person. The community is protected as the accused is prevented from reoffending, inflicting harm or committing any further offences while awaiting trial.

The purpose of remand is also to ensure the court that the accused will appear at the next hearing (whether it be a hearing as part of the committal process or the trial) so that the accused is tried for the offences with which he or she has been charged.

Remand also prevents an accused from interfering with witnesses or obstructing the course of justice. This will ensure a fair hearing by allowing witnesses the freedom to tell their story.

46

What are committal proceedings?

Indictable offences are more serious criminal offences, such as rape and murder, which can be tried before a judge and jury. One of the steps to take place before a criminal case is tried in the County Court, or Supreme Court, is a committal proceeding, which involves different types of hearings in the Magistrates’ Court to determine whether a case is ready for trial.

The term ‘committal proceedings’ is used to describe all the procedures that take place within the Magistrates’ Court as part of the committal stage. The committal hearing is the last stage of that process. While you only need to know the committal hearing, it is useful
to know all the other steps in the committal proceedings.

47

What are the purposes of committal proceedings?

The purposes of a committal proceeding are to:
• determine whether the evidence is of sufficient weight to support a conviction by a jury at trial, often known as establishing whether a prima facie case exists (prima facie means at first
sight)
• ensure a fair trial (if the matter proceeds to trial), for instance by ensuring that the prosecution’s case against the accused is adequately disclosed, enabling the accused to hear or read evidence and cross-examine prosecution witnesses, put forward a case at an early stage if the accused wishes to do so, and adequately prepare and present a case
• clarify the issues before attending trial and thereby avoid taking a matter to trial when the evidence is flimsy, saving the time and resources of higher courts
• determine how the accused proposes to plead to the charge or charges.

48

Explain the commencement of committal proceedings.

The committal process begins with a filing hearing. The Magistrates’ Court will set down a date for the filing hearing once a charge sheet containing a charge for an indictable offence that is not able to be heard summarily is filed by the police informant. Further details of the filing hearing are listed below.

49

Explain the hand-up brief.

Committal proceedings are generally conducted with the use of written statements. Using written statements speeds up the process of committal proceedings and means the witnesses and the accused only need to explain the events once, in open court at the trial. The written statements are contained in a hand-up brief.

50

What has the hand-up brief in a committal proceeding done?

The use of a hand-up brief in a committal proceeding has largely eliminated the need for oral evidence. Instead, written statements are taken from witnesses unless the parties request that a witness gives oral evidence.

51

What does a hand-up brief contain?

A hand-up brief contains a copy of the charge sheet, copies of documents the prosecution intends to produce as evidence, copies of witness statements, interview transcripts, photographs and a list of exhibits gathered together in a legal brief, which is handed to the magistrate at the Magistrates’ Court.

The hand-up brief also informs the accused of future hearing dates and their purposes. The accused is entitled to the hand-up brief at least 42 days before the committal mention hearing (explained below) unless the court states otherwise or the accused consents to alternative arrangements.

52

What is a plea brief?

At any time before the hand-up brief, if the accused decides to plead guilty, the informant (the member of the police force who is bringing the charge against the person accused of the crime) may serve a plea brief on the accused.

The plea brief outlines the charge, states the material facts of the case and includes a statement by the victim.

53

What are the hearings in committal proceedings before the committal hearing?

The following hearings may be held in committal proceedings before the final hearing, which is known as the committal hearing.
. A filing hearing
. A compulsory examination hearing
. A special mention hearing
. A committal mention hearing
. A committal case conference

54

What is a filing hearing?

At this hearing, the Magistrates’ Court may fix a date for a committal mention hearing (explained below) and a time for the service of a hand-up brief. The court can also make any order or give any direction as it considers appropriate.

If the accused has been arrested and is on bail or remand, the filing hearing must be done within seven days of a charge sheet being filed; if the accused has been charged on summons then the time period for the hearing is 28 days.

55

What is a compulsory examination hearing?

The informant may apply to the Magistrates’ Court for this hearing to examine a relevant person, or to require that person to produce a document or other item, to assist their investigation of the offence. This must occur after the charge sheet has been filed and before the committal hearing commences. This step is optional.

56

What is a special mention hearing?

This may be held on the application of a party or the court. It is mainly a case management procedure. The Magistrates’ Court may set a timetable for quick and efficient progress of the committal hearings.

If the accused is pleading guilty to all charges, or they request it, the magistrate can immediately commit him or her to sentencing or a trial in the County Court or Supreme Court without continuing with the committal proceedings.

A committal mention hearing is optional. At the special mention hearing, the court may hold a committal mention hearing immediately and either determine the matter or direct the informant to serve a hand-up brief.

57

What is a committal mention hearing?

The informant and the accused must attend this hearing, unless excused. At a committal mention hearing, the Magistrates’ Court may take the following courses of action.
– The committal hearing may be conducted immediately. See below for an explanation of the committal hearing.
– The court may determine whether the matter should be dealt with summarily.
– The court may hear an application for leave to cross-examine a witness. If the court allows particular witnesses to give oral evidence and be cross-examined, the matter will proceed to a contested committal mention hearing where the witness will appear and give oral evidence. If the application is not successful the matter will proceed using the hand-up brief.
– The court may fix a date for a committal hearing, and hear and determine any objection to disclosure of material.

The court must ask the accused how he or she pleads. If the accused pleads guilty and the court is satisfied that the evidence is of sufficient weight to support a conviction at trial, the court must commit him or her for sentencing and inform the accused that the sentencing court may take into account a plea of guilty.

58

What is a committal case conference?

This is a case management tool that provides a more informal opportunity for the prosecution, the accused and the court to discuss the case and attempt to identify the key issues to be resolved. Where practicable, the committal case conference should be held on the same day as the committal mention hearing.

Any statements or actions made are not admissible in any later proceedings, with the aim of promoting open discussion of the case. Committal case conferences are not compulsory.

59

Explain what a committal hearing is?

This is the final stage of the committal proceedings and the most important of the hearings in the committal process. At the committal hearing, the magistrate must determine whether there is evidence of sufficient weight to support a conviction.

The hearing is conducted in accordance with rules of evidence and procedure. The prosecution will first present the case, followed by the accused.

60

What happens if the Magistrate finds there is sufficient weight to support a conviction at trial?

If the magistrate finds there is evidence of a sufficient weight to support a conviction at trial, the accused is committed to stand trial and released on bail awaiting the trial or held in remand. The evidence collected during the committal proceeding forms the depositions.

This is a collection of all the evidence given by the witnesses under oath that can be used in court at a later date. The depositions are then sent to the Office of Public Prosecutions (OPP) for the trial to be prepared.

61

What happens if the Magistrate finds there is insufficient weight to support a conviction at trial?

If the magistrate decides that there is insufficient evidence, and a prima facie case has not been established, the accused is discharged and is allowed to go free; that is, he or she is not committed for trial.

If further evidence is found in the future, the accused can once again be brought before the court as the committal proceedings are not a trial and the accused has not been found guilty or not guilty.

62

Explain the procedure after committal proceedings?

On committing an accused person for trial, the Magistrates’ Court must transfer all related summary offences to the court that will deal with the indictable offences, so that both summary and indictable offences can be dealt with at the same time.

Once an accused has been ordered to stand trial, an indictment is drawn up. This is a written statement containing the details of the charge or charges against the accused. The indictment (formerly called a presentment) is usually filed in court at the commencement of the trial.

A case conference may be conducted before the indictment is signed.

63

What is a direct indictment?

It is possible to ask the Office of Public Prosecutions to omit the committal proceedings stage. This is known as a direct indictment. This would only be done if the prosecution had a strong case and was trying to avoid the trauma, expense and time involved in committal proceedings. A direct indictment rarely occurs.

64

Explain discontinuing a prosecution.

The DPP also has the power to suspend a prosecution if they believe that the evidence is not strong enough for a conviction or there is the possibility of a not guilty verdict.

This procedure, called discontinuing a prosecution (previously called nolle prosequi), can be done any time before judgment, and has the effect of suspending the case without acquitting the accused. It does not prevent a new indictment for the same offence at a later date.

65

Flow chart on page 428

Page 428

66

What are the strengths of bail?

. Upheld rights
. Presumption of entitlement to bail
. Can be granted with conditions
. Prevents exposure to negative influences in prison
. Prevents costs of remand
. Doesn't impact the individual like remand

67

Explain the following strengths of bail:
. Upheld rights
. Presumption of entitlement to bail
. Can be granted with conditions

. Upheld rights - Procedures such as bail help to uphold the rights of accused persons by treating them as innocent until they are proven guilty. This is by allowing them to go free and continue to work and be involved in the community, as well as allowing them to prepare their case, while they await the next court date.

. Presumption of entitlement to bail -The Bail Act 1977 (Vic.) presumes that an accused person is entitled to bail. That is, the onus is on the prosecution or the police to argue that the accused should not be bailed.

. Can be granted with conditions - Bail can be granted with conditions, therefore the court (or the bail justice) can create a balance between the rights of the accused and the protection of society (and the need for justice) by imposing certain conditions such as requiring the accused to surrender his or her passport.

68

Explain the the following strengths of bail:
. Prevents exposure to negative influences in prison
. Prevents costs of remand
. Doesn't impact the individual like remand

. Prevents exposure to negative influences in prison - Research suggests that once a person goes to prison they are more likely to go back. Allowing accused persons to be bailed prevents those people from being exposed to negative influences in prison and decreases the likelihood they will offend again.

. Prevents costs of remand - Remand is expensive for the state government – the Department of Justice has found that the cost is approximately $204 per day per prisoner. Bail helps to prevent this cost from being incurred.

. Doesn't impact the individual like remand - Remand can have negative effects on society because of its impact on the individual – it can result in unemployment, homelessness, drug abuse, exacerbation of mental illness and an increase in poverty for the accused person. Bail helps to prevent these negative effects.

69

What are the strengths of remand?

. Ensures that justice can be done - by keeping the accused in custody, which guarantees that the accused will appear in court at the next hearing and will be tried on the charges.

. Can protect society - by removing the accused from the community and preventing him or her from reoffending or causing harm. This is particularly important for those accused where
there is a real risk that they will reoffend.

. Witnesses are protected and evidence is not impeded - by the accused being allowed to go free. This again will ensure that natural justice can take place at trial.

70

What are the strengths of committal hearings?

. They help to save time and resources
. Allow the accused to be informed of the prosecution's case
. The accused is innocent until proven guilty
. Opportunity to withdraw or combine some charges
. Opportunity to test the strength of the prosecution's case

71

Explain the following strengths of committal hearings:
. They help to save time and resources
. Allow the accused to be informed of the prosecution's case
. The accused is innocent until proven guilty

. They help to save time and resources - Committal proceedings and the committal hearing help to save the time and resources of higher courts by filtering out the cases that are unlikely to succeed due to insufficient prosecution
evidence.

. Allow the accused to be informed of the prosecution's case - The committal process allows the accused to be informed of the prosecution’s case against them, which could assist them in deciding how to plead a case, and also assist them in preparing
their case.

. The accused is innocent until proven guilty - The onus is on the prosecution to establish to the court that there is enough evidence of sufficient weight to support conviction at trial. If this is not established, the accused is discharged. This supports the notion that the accused is innocent until proven guilty and needs not prove anything at this stage.

72

Explain the following strengths of committal hearings:
. Opportunity to withdraw or combine some charges
. Opportunity to test the strength of the prosecution's case

. Opportunity to withdraw or combine some charges - The prosecution is provided with the opportunity to withdraw some charges or combine charges into one after having considered the evidence, particularly at the committal mention stage. This will help achieve a fairer trial and save the time of the higher court.

. Opportunity to test the strength of the prosecution's case - The accused is given the opportunity to test the strength of the prosecution’s case. This can lead to the accused pleading guilty or agreeing on some facts or issues with the prosecution, again saving the time and resources of the courts.

73

What are the weaknesses of bail?

. Risk that the accused absconds
. Risk that the accused will reoffend/cause harm to the community
. Potential obstruction of justice
. Bail process is extremely complicated
. Can be time-consuming and stressful

74

Explain the following weaknesses of bail:
. Risk that the accused absconds
. Risk that the accused will reoffend/cause harm to the community

. Risk that the accused absconds - As the accused is free in society, there can be a risk that the accused absconds or does not appear at the next hearing. This can prevent justice from being done and can come at a cost if the police need to investigate where the accused is.

. Risk that the accused will reoffend/cause harm to the community - There is a risk that the accused will reoffend or cause harm to the community, thus risking society as a whole.

75

Explain the following weaknesses of bail:
. Potential obstruction of justice
. Bail process is extremely complicated
. Can be time-consuming and stressful

. Potential obstruction of justice - The accused person may seek to talk to prosecution witnesses, damage evidence or obstruct
justice by impeding the prosecution’s continuing investigations.

. Bail process is extremely complicated - The bail process is extremely complicated. The processes are not well understood and it normally
requires the involvement of a legal practitioner who can make arguments on behalf of the accused
person.

. Can be time-consuming and stressful - Making an application for bail can be time-consuming and stressful, particularly if the accused
has previously applied for bail but was denied.

76

What are the weaknesses of remand?

. Unfair
. Risk of reoffending
. Expensive
. Negative effects in society
. Can affects the accused ability to prepare for trial

77

Explain the following weaknesses of remand:
. Unfair
. Risk of reoffending
. Expensive

. Unfair - Remand does not uphold the notion that the accused is innocent until proven guilty. Some accused may ultimately be found not guilty of some or all of their charges, making it unfair if they serve time for charges they are found not guilty of.

. Risk of reoffending - Research suggests that once a person goes to prison they are more likely to go back. Exposing a person to jail through remand can risk them reoffending and returning to prison.

. Expensive - Remand is expensive for the state government. According to the Report on Government Services 2013, the 2011–12 average net cost per prisoner in remand in Victoria was $338 per day. In 2012, there were 996 prisoners on remand in Victoria. That meant a cost of $336,648 per day.

78

Explain the following weaknesses of remand:
. Negative effects in society
. Can affects the accused ability to prepare for trial

. Negative effects in society - Remand can have negative effects on society because of its impact on the individual – it can result in unemployment, homelessness, drug abuse, exacerbation of mental illness and an increase in poverty for the accused person.

. Can affects the accused ability to prepare for trial - Remand can affect an accused person’s ability to prepare for trial, relying on visits with his or her legal practitioner and other people such as family and friends to be able to adequately prepare. It also prevents the accused from being able to work, restricting his or her ability to be able to pay for costs such as lawyer fees.

79

What are the weaknesses of committal hearings?

. Complicated
. Expensive
. Delays
. Stress and inconvenience
. Unnecessary

80

Explain the following weaknesses of committal hearings:
. Complicated
. Expensive

. Complicated - Committal hearings are extraordinarily complicated. They can involve cross-examination of
witnesses, rules of evidence and procedure, and the making of submissions. The committal hearing is also one of many hearings that take place in the committal proceedings. Without experience in those processes, and without the aid of a legal representative, the accused can find it hard to understand.

. Expensive - Requiring the services of a legal representative can be expensive. This will add to the cost for the accused, who may not be working if he or she is in remand.

81

Explain the following weaknesses of committal hearings:
. Delays
. Stress and inconvenience
. Unnecessary

. Delays - Committal proceedings can add to the delays of getting a case to trial. This has resulted in some calls for cases to proceed directly to trial and bypass the committal stage.

. Stress and inconvenience - Committal proceedings often contribute to the stress and inconvenience experienced by the accused, the victim and their families.

. Unnecessary - For stronger cases, the committal hearing could be considered unnecessary and burdensome, adding extra stress and inconvenience to the parties and to the victims and family members.

82

What are cases brought before the County and Supreme Court known as?

Trials.

83

What is a trial?

A trial is an examination and determination of a legal case in a court, other than the Magistrates’ Court (which conducts hearings). Indictable offences are heard in the County Court or Supreme Court.

84

What is a hearing?

A hearing is a judicial examination and determination of a case in the court of summary jurisdiction (the Magistrates’ Court). The Magistrates’ Court hears summary offences and some of the less serious indictable offences.

An accused charged with an indictable offence may consent to having the case heard summarily. Most do consent because the maximum sentence is likely to be less, and the case is heard in a more timely and cost-effective manner.

Most criminal cases therefore originate in the Magistrates’ Court either as a hearing or a committal hearing of a case that is to be heard in a higher court. How a trial is conducted depends on whether the accused pleads guilty or not guilty.

85

Explain legal representatives for criminal trials.

Accused persons may engage legal representatives to represent them, or elect to represent themselves. If they are unable to afford legal representation, they may be eligible for legal aid. In Victoria a court may order Victoria Legal Aid to fund legal representation in cases where the court believes an unjust result would occur if the accused did not have legal representation.

86

Flow chart of page 435

Page 435

87

What is the double jeopardy rule?

The double jeopardy rule states that no person should be tried twice for the same offence. Under this rule, a person acquitted of a crime cannot be tried again if new evidence comes up. On 21 December 2011, the Criminal Procedure Amendment (Double Jeopardy and Other Matters) Act 2011 (Vic.) created exceptions to this rule.

For example, of there is fresh and compelling evidence such as DNA evidence, the accused later confesses to the crime, it emerges that key witnesses gave false evidence, or where the trial has been tainted (such as if it were found that a juror was intimidated or bribed).

88

What is a sanction?

If the accused is found guilty, or if they have pleaded guilty to the charge(s) before them, then the judge or magistrate will decide on the appropriate sanction to be imposed. Sanctions are the punishments imposed by courts.

The Sentencing Act 1991 (Vic.) deals with the powers of the court to pass sentences and sets out the various types of sanctions. It was passed to provide greater consistency in sentencing and to promote respect for the law.

89

What are the purposes/aims of criminal sanctions?

Section 5(1) of the Sentencing Act 1991 (Vic.) sets out the aims of criminal sanctions, which are:
• punishment
• deterrence
• rehabilitation
• denunciation
• protection

90

What must a sentencing judge take into consideration when imposing a sentence?

A sentencing judge must take all these aims and purposes into consideration when imposing a sentence, but must not impose a sentence that is more severe than necessary to achieve the purposes for which the sentence is imposed (called the principle of parsimony).

Often the aims overlap and more than one aim is sought to be achieved.

91

Explain the following aim/purpose of criminal sanctions: punishment

The offender should be punished to an extent and in such a manner that is just in all the circumstances and so that society can feel there has been retribution.

It is necessary for society to feel that there has been some revenge against the offender. If a person has done something totally unacceptable to society, and especially if someone has been harmed in the process, the offender must be punished in some way so that the victim of the crime and society as a whole feel avenged.

This process of punishment through the courts avoids the need for the victim of a crime to take the matter into their own hands and seek revenge. Such action would cause disruption to society. The punishment given must therefore be appropriate to the offence committed.

92

Explain the following aim/purpose of criminal sanctions: Deterrence

The sanction should be such that it will deter the offender or other people from committing the same or similar offences. If people could commit crimes freely without the threat of punishment, law and order would be virtually impossible to maintain.

Sanctions are therefore aimed at discouraging other people from committing similar crimes. This is known as GENERAL DETERRENCE because it is aimed at deterring the general public. Sanctions can also be a SPECIFIC DETERRENCE in that they can deter the offender from committing the same offence again.

93

Explain the following aim/purpose of criminal sanctions: rehabilitation

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

This could be by giving a bond or a community correction order to encourage rehabilitation rather than sending offenders to prison. A community correction order can also assist by requiring offenders to participate in training in a variety of skills.

Although prison is the sanction of last resort (because the offender is then forced to mix with known criminals), there are also programs carried out within prisons, such as trade training, aimed at assisting prisoners.

94

Explain the following aim/purpose of criminal sanctions: denunciation

Denunciation refers to the disapproval of the court. A particular punishment may be given to show the community that the court disapproves of the offender’s conduct.

For example, the judge may give a harsher sentence for a particularly violent rape and make comment about how the court is showing disapproval of this type of behaviour.

95

Explain the following aim/purpose of criminal sanctions: protection

In some instances it is necessary to protect the community from the offender. In such cases the offender needs to be removed from society (put in prison) to be physically prevented from reoffending.

Non-custodial sentences such as community correction orders can also be seen as protecting the community from offenders because they keep offenders busy when they might otherwise be engaged in criminal activity. However, offenders may abuse community correction orders and offend while carrying out community work.

96

What are the guidelines for sentencing?

In deciding on an appropriate sentence to be imposed on the offender, the judge is obliged by the Sentencing Act 1991 (Vic.) and its amendments to consider:
• the maximum penalty prescribed for the offence
• current sentencing practices
• the nature and gravity of the offence
• the offender’s culpability and degree of responsibility for the offence
• whether the offence was motivated (wholly or partly) by hatred or prejudice against a group of people with characteristics in common with the victim
• the impact of the offence on any victim of the offence
• the personal circumstances of any victim of the offence
• any injury, loss or damage resulting directly from the offence
• whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so, or indicated an intention to do so
• the offender’s previous character, including the number, seriousness, relevance and nature of any previous convictions, the general reputation of the offender and any significant contributions made by the offender to the community
• the presence of any aggravating or mitigating factors concerning the offender or of any other relevant circumstances – that is, if there was anything about the offence or the offender that made the offence worse or if there was anything about the offence or the offender that lessened the gravity of the offence.

97

More on guidelines for sentencing.

When sentencing an offender who has pleaded guilty, if the court imposes a less severe sentence due to this guilty plea (sentence discount), then it must also state the sentence that would otherwise be imposed if the offender did not plead guilty.

This applies to discounts given for a plea of guilty where the sentence is of a custodial nature or involves a fine of over 10 penalty units, or an aggregate fine of more than 20 penalty units. For less severe sentences, the court is not required to identify the amount of a discount, but may wish to do so.

98

What are the types of sanctions?

. Imprisonment with conviction*
. Drug treatment order
. Youth justice centre ordered the conviction
Youth residential centre order with conviction
. Community correction order with or without conviction*
. Fine with or without conviction*
. Adjournment with or without conviction
. Discharge p with conviction
. Dismissal without conviction

* = 3 I'm remembering

99

What is a fine?

A fine is 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. Under the Sentencing Act 1991 (Vic.), fines are usually expressed in levels (1–12). Each level refers to a number of penalty units.

100

What happens if a fine is not paid?

If a fine is not paid the offender can be imprisoned or ordered to do community work under a fine default unpaid community work order. The current terms for unpaid fines are one day of imprisonment for each penalty unit or part thereof, to a maximum of 24 months.

For unpaid community work the rate is one hour for each 0.2 penalty units, or part thereof, with a minimum of eight and a maximum of 500 hours. An instalment order can also be made to allow the accused to pay the fine in instalments.

101

What must the court consider when fixing a fine?

Under the Sentencing Act 1991 (Vic.), when fixing a fine a court must consider the financial circumstances of the offender and the nature of the burden that payment will impose.

The court may also consider any loss or destruction of, or damage to, property suffered by a person as a result of the offence and the value of any benefit derived by the offender as a result of the offence.

102

Explain the sentencing aims of fines.

A fine serves to PUNISH the offender by requiring them to pay money to court. It may act as a SPECIFIC DETERRENCE in that the offender may be deterred from reoffending.

Members of society may also be deterred (GENERAL DETERRENCE) from offending because of the possibility of having to pay a fine.
A court could give an extremely high fine as a way of DENOUNCING the particular crime. This is showing disapproval of the crime committed.

However, a fine is unlikely to help in the rehabilitation of an offender. It also does not take the offender out of society by way of PROTECTION.

103

What is a community corrections order?

A community correction order (CCO), formerly known as a community-based order, is a supervised sentence served in the community, and includes special conditions such as treatment and unpaid community work for a specified number of hours.

A CCO can be imposed for up to two years in the Magistrates’ Court, and for between two years and the statutory maximum term of imprisonment for that offence in the County Court and Supreme Court. A conviction may or may not be recorded.

CCOs give offenders the opportunity to put a stop to their criminal behaviour and undergo treatment or take part in educational, vocational or personal development programs. This is known as ‘tailor-made’ sentencing.

104

More on CCOs.

A court can only impose a CCO if the offender has been found guilty of an offence punishable on conviction by imprisonment or a fine of more than five penalty units, the court has received a pre- sentence report and the offender agrees to comply with the order.

The court must also be satisfied that the CCO is appropriate for the particular offender. If the offender does not comply with the order, the order can be cancelled, in which case the offender will be sentenced for the original offence. This could mean a tougher sentence because the offender has failed to comply with the CCO.

105

What can a CCO be combined with?

A community correction order can be combined with either a fine or up to three months’ imprisonment. When combined with a term of imprisonment, the order will commence on the offender’s release from jail.

106

What is a plea/charge bargaining?

This involves agreements being made between the accused and the prosecutor, on an informal basis, about the charges to be laid. This may lead to some charges being dropped in exchange for a guilty plea to the main charges or in exchange for evidence being eaten.

107

What happens if the accused is pleading guilty?

If the accused is pleading guilty, a summary of the evidence is presented. Prior convictions are read out and information relating to their character may be presented to the court. Victim i,pact statement may be read and defence counsel may submit arguments in favour of leniency.

108

What are the conditions attached to a CCO?

There are basic conditions attached to a CCO. These attach to every CCO made in the court and require that the offender:
• does not commit another offence punishable by imprisonment
• reports to a specified community corrections centre within two working days of the order coming
into force
• reports to and receives visits from a community corrections officer
• notifies an officer of a change of address
• does not leave Victoria without permission
• complies with any directions of community corrections officers.

109

What are the special conditions that a court is required to attach to CCOs? (Only need to attach at least one to CCO)

• unpaid community work – This requires the offender to perform unpaid community work, the purpose of which is to punish the offender. The offender must perform the number of hours of community work specified in the court order, which must not exceed 600 hours. The number of hours must not exceed 20 over a seven-day period unless the offender requests to do more.
• treatment and rehabilitation – The offender will be required to undergo treatment and rehabilitation ordered by the court which addresses the underlying causes of the offending. This could be treatment for drug abuse or dependency, medical assessment and treatment, or
vocational or educational treatment.
• supervision – This is where the offender is supervised, managed and monitored by a community corrections officer.
• non-association – This is an order directing that the offender must not
contact or associate with a person, or class of persons, specified in the order.
• residence restriction or exclusion – The court may order that the offender reside at a place, or not reside at a place, specified in the order.
• place or area exclusion – An order may be made attaching a condition which directs that the offender must not enter or remain in a specified area or place, such as a particular sporting venue, the central business district of Melbourne or a licensed premises. Usually this condition is necessary for people that have a habit of committing crimes in a certain area or venue.
• curfew – The offender may be directed to remain at a certain place specified in the order between specified hours of each day, such as at home between 9 pm and 6 am.
• alcohol exclusion – The offender may be prevented from entering into or remaining in licensed premises or a major event, or prevented from consuming liquor in any licensed premises.
• judicial monitoring – This attaches a condition directing that the offender be monitored by the court.

110

What are the aims of CCOs?

A CCO is a PUNISHMENT because it is a demand on the time of the offender. Conditions such as a curfew or alcohol condition can also assist to punish the offender. This can also serve as a SPECIFIC DETERRENCE in that having to do the work may discourage the offender from reoffending.

A CCO can PROTECT society in that it occupies an offender at times when he or she may otherwise be encouraged to commit a crime. A CCO may also help to REHABILITATE an offender because programs are provided to assist the offender to move away from criminal behaviour.

111

What happens if the accused is pleading not guilty?

A not guilty plea lengthens the trial process as the case is heard by a judge and jury of 12.

112

What is imprisonment?

People who have been convicted of a crime can be sentenced to be detained in jail for a period of time, which means a loss of their freedom and liberty.

Prison terms are expressed in levels from one to nine, one being the most serious (imprisonment for life) and nine being for six months.

113

What happens if a court sentences an offender to be imprisoned for a term of two years or more?

If a court sentences an offender to be imprisoned for a term of two years or more, it must also state a minimum, non-parole period. If the sentence is between one and two years, then the court has the option of stating a non-parole period. After this minimum period, the prisoner’s suitability for parole is reviewed by the Parole Board.

114

What is parole?

Parole is a term used to describe the release of a prisoner after the minimum period of imprisonment has been served. Conditions can be attached to a period of parole. Otherwise, prison sentences are to be served in full.

115

What are the terms of imprisonment that can be given for each court?

The Magistrates’ Court is limited in the length of sentence it may impose. The maximum sentence for a single offence is up to two years (three years for a drug offence) and up to five years for two or more offences.

The maximum term of imprisonment (life) can only be imposed by the Supreme Court. A term of life imprisonment means for the term of the prisoner’s natural life, although the court may set a minimum term.

116

What happens if a person has been held in custody before sentencing?

If an offender has been held in custody (for example, on remand) before sentencing, any time spent in prison will be taken as part of the sentence to be served.

117

What are the sentencing aims of imprisonment? Punishment and protection

Imprisonment is seen as the sanction of last resort, as it results in a loss of liberty and freedom. It removes the offender from society as a PUNISHMENT for offending against society and as PROTECTION for society.

Having a prison system leads to a safer society because serious criminals are kept out of society. Some would argue that more offenders should be kept in jail and that sentences should be harsher.

Others argue that the most significant aim of criminal sanctions should be to rehabilitate offenders so that they are more likely to lead a useful and productive life within the boundaries accepted by society.

118

What are the sentencing aims of imprisonment? Rehabilitation, deterrence and denunciation

Imprisonment may lead to REHABILITATION because of the various programs offered to prisoners, but it is more likely to lead to further crimes because of the influence of other prisoners and the difficulty of getting back into a normal life after having spent time in prison.

Courts can also impose long sentences on offenders by way of showing disapproval of the acts committed (DENUNCIATION).

Imprisonment is likely to act as a general deterrence in that most people would be deterred from committing a crime by the possibility of going to prison. It may also act as a SPECIFIC DETERRENCE in that the offender will not want to go to prison again. However, because they mix with serious criminals while in prison, it may not be very effective as a SPECIFIC DETERRENCE.

119

How can terms of imprisonment be served?

Terms of imprisonment can be served concurrently or cumulatively.

120

What is a concurrent sentence?

A concurrent sentence runs at the same time as another sentence. For example, someone who has been found guilty of theft and assault and sentenced to six months for theft and two years for assault ‘to be served concurrently’ will be detained for only two years because the two sentences are served at the same time. Sentences are usually ordered to be served concurrently.

121

What are aggregate sentences?

In instances where an offender has been convicted of multiple, related offences, the court has the option of imposing an aggregate sentence that applies to more than one offence, rather than separate sentences for each offence. This enables the court to impose a sentence that reflects all of the offender’s conduct, and provides a clearer explanation of the total sentence.

An aggregate sentence cannot exceed the total effective sentence that would have been imposed if a separate sentence was imposed for each offence. However, aggregate sentences are not available for serious offences where there is a presumption that sentences will be served cumulatively.

122

What are indefinite sentences?

Page 458

123

What is deferred sentencing?

This is only available if the Magistrates’ Court or County Court finds a person guilty of an offence. A magistrate or County Court judge can defer the sentencing of an offender for a period of up to 12 months if it is in the interests of the offender and if the offender agrees.

This allows the offender to assess prospects of rehabilitation and participate in programs addressing the underlying causes of offending. At the end of the deferral period, the court will sentence the person, having regard to the offender’s behaviour during the period of deferral.

124

What is recidivism?

Over half (58 per cent) of the people in prison in 2013 had been imprisoned before. Younger prisoners were more likely than older prisoners to be reimprisoned following release.

In 2010, it was found that within 10 years of being released, the reimprisonment rate for the teenager group (those aged 17–19 years when released) was 61 per cent, compared with 23 per cent for those aged 35 years and over.

125

What are some court orders that can be imposed in addition to sentences given?

• order for restitution – A court can order the return of stolen goods. The value of the goods may also be taken from any money found on the accused at the time of apprehension.
• order for compensation – In some instances, when the accused has been found guilty of a crime, a criminal court can order that the accused pay compensation to a victim, as recompense for the
injury, damage or loss suffered by the victim.
• cancellation of driver’s licence – Cancel or suspend the driving licence of an offender convicted of driving offences for a certain period of time and disqualify them from obtaining a licence for a
further set period.
• forfeiture order – Allow ‘tainted property’, which is property used or intended to be used by the accused in commission of the offence, or derived wholly or partly from the commission of the
offence, to be forfeited to the state.
• hospital security order – Order a mentally ill offender to be admitted for treatment and detention in an approved mental health service, as an involuntary security patient for up to two years. Involuntary treatment orders are not available for offenders who have been found guilty of a ‘serious offence’, such as murder, manslaughter, defensive homicide, rape or armed robbery.
• superannuation orders – A court can order the superannuation of a public sector employee who has been convicted of an indictable offence involving the abuse of their office, corruption or perversion of the course of justice to be used for monetary restitution.

126

When assessing the effective operation of criminal procedure what should you consider?

You should consider the extent to which each of the three elements of an effective legal system is achieved. For each element, you should consider:
• the processes and procedures that help the achievement of each element
• the processes and procedures that hinder the achievement of each element
• recent changes and recommendations for change that could help achieve each element.

127

Entitlement to a fair and unbiased hearing in criminal procedure.

For a fair and unbiased hearing to be achieved in a criminal case, it is essential that all those accused of a crime receive equal treatment during the pre-trial, trial and post-trial stages of their trial or hearing.

128

What are the processes that may achieve a fair and unbiased hearing in criminal procedure?

. Bail
. Committal proceedings
. Police investigation
. Role of the judge
. Rules of evidence and procedure
. Consistency in sentencing
. The Koori Court

129

Explain the following processes that may achieve a fair and unbiased hearing in criminal procedure:
. Bail
. Committal proceedings
. Police investigation

. Bail - Upholds the presumption of innocence, as an accused person is generally released from custody until their hearing or trial. Being released on bail also gives the accused and their legal representation the best chance to prepare their case, thereby having the same opportunity to do so as the prosecution.

. Committal proceedings - This process enables the accused to learn of the prosecution’s case against them, thereby helping them to prepare their defence, and putting them on an equal footing with the prosecution.

. Police investigation - Police powers of questioning, arrest, searches and so on are balanced against individual rights, such as the right to silence, questioning for only a reasonable period of time, and the right to contact a legal representative, friend or relative. This is done in an attempt to balance rights, and to make sure that people are treated equally and fairly by the police.

130

Explain the following processes that may achieve a fair and unbiased hearing in criminal procedure:
. Role of the judge
. Rules of evidence and procedure

. Role of the judge - The judge acts as an independent and impartial arbitrator at the hearing. This ensures that the matter is heard before someone who is not biased and can adjudicate on the matter, if there is no jury, in an impartial way.

. Rules of evidence and procedure - These apply to both parties to a case and help to protect the accused. The parties are able to examine their witnesses – each side has equal opportunity to cross-examine witnesses brought by their opponents, and each side is able to re-examine their own witnesses. The rules of evidence are designed to ensure that both sides are treated equally before the law and to enable the smooth and efficient running of a case. The rules of procedure help to ensure the reliability of the witnesses and to get at the truth of the matter so that the court can make a decision.

131

Explain the following processes that may achieve a fair and unbiased hearing in criminal procedure:
. Consistency in sentencing
. The Koori Court

. Consistency in sentencing - The judiciary aims to be seen as totally independent of all prejudices and therefore able to treat everyone who comes before it according to the facts of the case only, and not according to any preconceived ideas. The Sentencing Act 1991 (Vic.) aims to provide consistency in sentencing (although there is the possibility that a member of the judiciary could have personal biases that could affect the outcome of a case).

. The Koori Court - This court hears guilty pleas with the assistance of Indigenous elders or respected people in an attempt to provide a fairer, more culturally sensitive, outcome.

132

What are the problems that may hinder a fair and unbiased hearing in criminal procedure?

. Bail
. Resources
. Trial procedures
. Bias
. Direct investment
. Changes to the Sentencing Act 1991
. Tighter guidelines for legal aid

133

Explain the following problem that may hinder a fair and unbiased hearing in criminal procedure:
. Bail
. Resources

. Bail - An accused person may not be granted bail and instead be placed on remand, which is being imprisoned, even though they have not been found guilty of a crime. Because of the possibility of keeping an innocent person in prison, bail justices, magistrates and police are very reluctant to refuse bail. However, if bail is given too freely, it could lead to an accused person absconding and causing extra work for the police and potential danger to the community.

. Resources - Prosecution evidence for a case is gathered by the police, who are experts in this area, with time and resources devoted to this purpose. An accused person will probably have far more limited resources and expertise in gathering their own evidence for their defence, thereby putting the parties on an unequal footing. However, it is the prosecution who has the burden of proving the case.

134

Explain the following problem that may hinder a fair and unbiased hearing in criminal procedure:
. Trial procedures
. Bias
. Direct investment

. Trial procedures - These may be confusing for the accused, particularly if they do not have legal representation. Further, witnesses who appear unreliable in court, or conflicting expert witnesses, may result in an unfair presentation of evidence.

. Bias - Media coverage of events leading up to a trial in high-profile cases can make it difficult to find jury members who have not already formed an opinion of the guilt or innocence of the accused. Also, some jury members may hold biases for other reasons.

. Direct investment - There is considerable debate about whether the OPP should be able to directly indict people without going through the committal proceedings process, as it may seem unfair if the accused is not entitled to the committal process.

135

Explain the following problem that may hinder a fair and unbiased hearing in criminal procedure:
. Changes to the Sentencing Act 1991
. Tighter guidelines for legal aid

. Changes to the Sentencing Act 1991 - Tougher sentencing laws put in place in 2011, and continued in 2013, create a substantial amount of changes to the sentences that can be imposed by courts. Home detention and intensive correction orders have been abolished, and suspended sentences are no longer available for many offences as of 2014. This has caused concern among some members of the judiciary, believing that the sentencing regime is ‘too rigid’ and does not adequately take into account the individual circumstances of each offender, thus potentially resulting in an unfair outcome.

. Tighter guidelines for legal aid - Under tight new guidelines introduced in 2012, Victoria Legal Aid (VLA) only paid for an instructing solicitor for two half days. This was criticised in 2012 and 2013 by judges of the Supreme Court in separate trials, which were stayed because the lack of representation was seen to be risking fair trials being heard. VLA has since relaxed its guidelines but they still remain tight given a lack of funding. The Court of Appeal has said that ‘When it comes to legal representation, a decision to stay a trial reflects the court’s assessment of what is necessary to ensure that justice is done’.

136

What are recent changes which further assist in achieving and fair and unbiased hearing in criminal procedure?

. Improving police powers to address organised crime
. Magistrates' Court of Victoria initiatives
. Changes to bail laws

137

Explain the following recent change which further assists the achievement of a fair and u biased hearing in criminal procedure: improving police powers to address organised crime

Criminal organisations Control and Other Acts Amendment Act (2014).

This simplifies the test applied by the Supreme Court to make control orders which include orders to:
. Ban the organisations
. Ban association between gang members
. Prohibit the display of gang patches and insignia

138

Explain the following recent change which further assists the achievement of a fair and unbiased hearing in criminal procedure: magistrates' court of Victoria initiatives

The Melbourne Magistrates’ Court has introduced weekend sittings to help improve its operations and reduce the pressure of cases listed on Monday mornings. It will also make it easier for people to attend the court out of work hours.

Weekend sittings will enable those remanded in custody to come before a court at the earliest opportunity for bail applications.

139

Explain the following recent change which further assists the achievement of a fair and unbiased hearing in criminal procedure: changes to bail laws

The Bail Amendment Act 2013 (Vic.) changed the Bail Act 1977 (Vic.) so that it was clear what conditions could be imposed as part of bail. This allows for a fairer and more consistent approach to bail and more consistency in the application of appropriate conditions for different accused persons.

140

What are some recommendations for change that could further assist in achieving a fair and unbiased hearing in criminal procedure?

. Witness Protection Amendment Bill (2016)
. Increased funding for Victoria Legal Aid (VLA)

141

Explain the following recommendation which may further assist the achievement of a fair and unbiased hearing in criminal procedure: Witness Protection Amendment Bill (2016)

This creates a new offence of intimidating witnesses (includes stalking) meaning those released on bail will be punished for intimidating witnesses.

142

Explain the following recommendation which may further assist the achievement of a fair and unbiased hearing in criminal procedure: Increased funding for Victoria Legal Aid (VLA)

Following various unsuccessful applications for legal aid in criminal trials in 2012 and 2013, which led to trials being stayed, there has been a greater call for more funding. VLA has announced it is in talks with the courts and lawyers to determine how jury trials can be funded in the future. An increase in funding will help achieve a fair and unbiased hearing and effective access to the legal system.

143

Effective access to the legal system in criminal procedure. Don't really need this.

While a person charged with a criminal offence does not have a choice as to whether to appear in court or not, it is important for them to have adequate access to the legal system to allow their case to be presented effectively, including courts, legal representation, other avenues of legal assistance and advice, and legal aid.

144

What is a cumulative sentence?

A cumulative sentence will be served after another sentence. In the above example, the offender would serve two years and six months. A cumulative sentence must be given for:
• serious offenders
• default of payment of a fine or sum of money
• an offence by a prisoner or an escape offence
• an offence committed by a person released on parole or on bail.

145

What are the problems that hinder effective access to the legal system in criminal procedure?

. Geography – Distance and transport can affect the ability of people in rural areas to gain access to face-to-face legal services. In some instances people have to look outside their local community or closest large town for legal assistance because of conflicts of interest or lack of available expertise.

. Awareness of legal rights – People in the community need to know their legal rights to gain effective access to the legal system. Some people charged with criminal offences are unaware of their rights; they may not know that they have the right to remain silent, the right not to submit to an unlawful police search and so on. Others may be unaware of the legal bodies available to provide advice, including community legal centres, the Fitzroy Legal Service and Victoria Legal Aid. This problem can be compounded if the person has problems with the English language, or there are cultural differences that limit their understanding of the legal process.

. Financial constraints – An accused person faces the high cost of engaging legal representation to assist them in preparing their defence and to represent them in court. It might be possible for them to obtain legal assistance through Victoria Legal Aid (VLA), although this is means-tested and subject to assessment for merit and reasonableness.

146

What are some recent changes which help to achieve effective access to the legal system in criminal procedure?

...

147

What are some recommendation which may help achieve effective access to the legal system in criminal procedure?

...

148

Timely resolution of disputes in criminal procedure.

It is important that once the suspect of a crime has been identified, they are not kept waiting for their case to be heard. Delays in criminal cases could result in emotional strain for the accused and his or her family, the stigma of being charged with a crime, possible loss of job, and disruption of family life. If the accused is being held on remand, there are the physical and mental effects of spending time in prison, and it may be difficult to prepare a case adequately. Delays could also mean that witnesses may be unavailable, or their memories may become cloudy.

It is essential that cases be resolved in a timely manner, not just for the benefit of the accused but also for the benefit of the victim, society and the legal system as a whole, so that the courts can hear other cases and disputes within a reasonable time. However, it is equally important that cases are not resolved too quickly, so that there has been time to fully consider the facts of the case, to make sure that a fair outcome is achieved.

149

What are the processes that achieve a timely resolution of disputes in criminal procedure?

. Committal proceedings
. Time limits
. Directions hearings

150

Explain the following process that achieves a timely resolution of disputes in criminal procedure: committal proceedings

These ensure that people who have been accused of a crime do not have to wait a long time for a trial when there is insufficient evidence to support a conviction by a jury at trial. This also results in the superior courts not being clogged up with cases that are unlikely to succeed, thereby saving time for the legal system as well.

The hand-up brief method of committal hearing has resulted in fewer traumas for the accused and victim, because they do not have to go through an open court hearing for the committal; it has also led to more court time being available for other matters.

151

Explain the following process that achieves a timely resolution of disputes in criminal procedure: time limits

The Criminal Procedure Act 2009 (Vic.) sets time limits at various stages of the criminal process. For example, a filing hearing must be held within seven days of a charge sheet being filed if the accused has been arrested, or within 28 days if a summons is issued.

A hearing for a summary offence, or an indictable offence heard summarily, must be commenced within 12 months (unless the accused and the DPP consent to an extension of time). Committal proceedings must be determined within two months after the committal mention hearing for sexual offences, although the Magistrates’ Court may fix a longer period.

152

Explain the following process that achieves a timely resolution of disputes in criminal procedure: directions hearings

These are designed to speed up the process of getting an accused person to trial and to reduce the length of the trial by having some issues resolved before the trial begins.

153

What are the problems that hinder a timely resolution of disputes in criminal procedure?

. Collection of evidence
. Committal proceedings
. Lack of sufficient court resources
. Changes in sentencing laws
. Court workload

154

Explain the following problems that hinder a timely resolution of disputes in criminal procedure:
. Collection of evidence
. Committal proceedings
. Lack of sufficient court resources

. Collection of evidence – Police may experience difficulties collecting evidence or locating witnesses, or suspects may refuse to cooperate with them.

. Committal proceedings – These can add to the delays experienced in some cases. This has resulted in people such as former DPP Jeremy Rapke and Victorian Ombudsman George Brouwer calling for committals to be abolished.

. Lack of sufficient court resources – Resources have not kept pace with the growth in the number of cases in the courts, causing problems such as cases dismissed from the Melbourne Magistrates’ Court due to a lack of available police prosecutors to prosecute cases.

155

Explain the following problems that hinder a timely resolution of disputes in criminal procedure:
. Changes in sentencing laws
. Court workload

. Changes in sentencing laws – Victoria’s top County Court judge, Chief Judge Michael Rozenes, has warned that the new sentencing regime put in place in 2011 could trigger an increase in trial delays and stretch court resources. He said the new sentencing legislation will complicate the process and ‘may seriously test the court and its resources’, and would have the potential to undo any reduction in delay already achieved.

. Court workload – The median time taken to finalise criminal appeals against sentence is six months. The Magistrates’ Court has a huge workload, but the percentage of cases finalised within six months has remained steady. All courts have a backlog of cases which have been continuing for more than 24 months.

156

What are the recent changes that achieve a timely resolution of disputes in criminal procedure?

. Weekend bail and remand court
. Introduction of court services Victoria (CSV)

157

Explain the following recent changes that achieves a timely resolution of disputes in criminal procedure: weekend bail and remand court

The Magistrates’ Court has introduced a pilot program which involves hearing bail and remand applications on the weekends in the Melbourne Magistrates’ Court. The weekend sittings are intended to reduce the backlog of cases during the week and allow the accused to be brought before the court at the earliest possible time.

158

Explain the following recent changes that achieves a timely resolution of disputes in criminal procedure: Introduction of court services Victoria (CSV)

The CSV began operations in 2014. It is an independent entity that provides administrative services to the Victorian courts and the Victorian Civil and Administrative Tribunal (VCAT). Chief Justice Warren has stated that this is a positive development and it will ‘enhance the capacity of the courts and VCAT to innovate and respond to emerging issues based on firsthand knowledge of the court system’.

159

What are the recommendations that may achieve a timely resolution of disputes in criminal procedure?

Continuation of the 24 Hour Initial Directions Hearings Pilot in the County Court – In January 2013, the County Court introduced a pilot program to address delays.

The aim of the program was to reduce the 10 to 12-week delay between the committal hearing and the initial directions hearing by scheduling the first directions hearing the day after the committal hearing.

The County Court in its annual report has proposed to expand the pilot program.

160

What are the processes that achieve effective access to the legal system in criminal procedure?

. Courts - Courts are available for all to use in criminal matters, with courts in both metropolitan and regional areas. Courts are specialised in terms of the types of cases that they hear. For example, the Magistrates’ Court hears summary or minor criminal cases, while the Supreme Court hears only the most serious criminal offences. Accused persons are able to get assistance in a court hearing from legal representatives.

. Appeals – The system of appeals means that if an incorrect or unfair decision does appear to have been made in a case, then either party is able to appeal the decision or sentence, provided that they can establish grounds for appeal.

. Legal aid and community centres – Bodies such as Victoria Legal Aid (VLA) and community legal centres can offer legal advice and representation to people charged with criminal offences.