Week 10 Flashcards
(37 cards)
1
Q
Functions of criminal courts
A
- Factual function: the finding of facts as established by the evidence
- Legal function: the application of the law to the evidence to distinguish relevance / admissibility
- Operational function: other judicial activities that ensure courts operate effectively, efficiently, and justly
2
Q
Hierarchy of courts
A
Magistrates courts District courts Supreme courts Appeal courts The high courts
3
Q
Adversarial process
A
- Australia’s criminal justice systems operate largely through an adversarial process
- Sets the state (prosecution) against the accused (defendant)
4
Q
Core features of adversarial process
A
- Pros. and def. counsel determine disputed facts before commencing proceedings
- Facts tested in evidence by each counsel in open court
- The judge or magistrate is passive and unbiased referee ensuring compliance with the rules of evidence and due process is afforded to the defendant
- If the defendant pleads guilty, or proven beyond reasonable doubt, the judge or magistrate proceeds to sentence the convicted defendant
5
Q
Sentencing guidelines
A
- Many offences have maximum (and sometimes minimum) penalties associated with them, which by law courts must consider
- Concerns over judicial discretion have resulted in strict guidelines in some places
- Although we see some backlash brewing (remember the flaws with retribution?)
6
Q
Sentencing considerations
A
- Previous history
- Offender remorse
- Victim impact
- > Can come in the form of a “statement” from the victim or a member of his/her family
- > Has a number of benefits
- > Has a number of criticisms
7
Q
What is victimology
A
- Studies victims of crime: the extent, nature, and causes of victimisation, its consequences for victims, and the reactions of society
- Two forms:
Social movements
Academic social science
8
Q
Victimology study areas
A
- The role of the victim in the dynamics of crime
- The development of victim typologies
- Explanations for victim-proneness
- The identification of victims’ needs
- The impact and effects of crime on victims
- The prevention of victimisation
- The alleviation of the fear of crime
9
Q
Who is a victim
A
- The United Nations identifies a victim of crime as an individual or group of people harmed “through acts or omissions that are in violation of criminal laws…including those proscribing abuse of power”
- Bayley (1991): focuses on loss or decrease in well-being
10
Q
Levels of victimisation
A
Primary victims: people directly affected by an offence
Secondary victims: people who have a relationship with the primary victim and are emotionally and/or financially dependent on them (e.g. child, parent, spouse)
Tertiary victims: people whose lifestyles have been inconvenienced by excessive fear and those people (e.g. consumers and taxpayers) who have to bear the cost to society of crime
11
Q
Impact and effects of crime
A
- Immediate, short-term, and long-term effects
- Highly variable and unique to each individual
Injuries and effects can include:
-> Physical / physiological
-> Emotional / cognitive
-> Economic
-> Inconvenience
-> Dysfunction in support group
12
Q
Victim rights movements
A
- Since the 1970s, moves to elevate victims’ rights
- > Not in pursuit of excessive rights that could reap other injustices
- 1970s feminists focused attention on the needs of women and children (eg. sexual assault sevices, shelters and women’s shelters)
- 1980s and 1990s saw introduction of victim-orientated legislation
- > eg. Queensland’s Domestic Violence (Family Protection) Act 1989
13
Q
Victims rights list
A
- To information about the progress of investigations
- To have their perceived safety concerns taken into account before suspects are released on bail
- To be informed about charge withdrawals and charge bargains
- To participate (usually by impact statements) in sentencing
- To compensation from the offender
- To have input at prisoners’ parole hearings and pre-release proceedings for the forensically mentally ill
14
Q
Victims of crime
A
- More than 1 million crime victims in Australia each year
- Many victims have complaints about the CJS
- Victims often feel their needs are overlooked or ignored
15
Q
Victim dissatisfaction
A
The police The prosecution The courts Corrections Compensation
16
Q
Problem oriented courts
A
Seek “to use the authority of the courts to address the underlying problems of individual litigants, the structural problems of the justice system, and the social problems of communities”
- Domestic and family violence courts
- Drug and alcohol courts
- Aboriginal courts
- Mental impairment courts
- Court intervention programs
17
Q
Therapeutic jurisprudence
A
“Is a philosophy of law which takes into account people’s well-being and social needs rather than just applying the rules of law and legal procedure”
One key manifestation is diversion from formal court processes, such as through conferencing
18
Q
Restorative justice
A
“A process whereby parties with a stake in a specific offence collectively resolved how to deal with the aftermath of the offence and its implications for the future.”
Practices include: sentencing circles, mediation, transformative justice, victim-offender conferencing
19
Q
Restorative justice conferences
A
- Three stages: introduction, storytelling, and agreement negotiation
- Participants: the convener, the offender, the victims, a police officer, and supporters
- Research evidence: mixed and nuanced
20
Q
McGarvie (2001) three functions of courts
A
A factual function
ascertain the facts of a matter through evidence
A legal function
apply the law to the evidence (eg. whether particular evidence is relevant and/or admissible)
An operative function
to ensure court operations are effective and efficient.
21
Q
Powers and functions of criminal courts
A
Criminal courts have the power to:
- direct people to do things
(eg. provide evidence, report to police if on bail etc) - forbid them from doing things
(eg. bail conditions forbidding contact with witnesses) - order punishment
(eg. fines, community service, probation, imprisonment) - order people they suspect to be mentally ill to be detained for assessment and treatment
22
Q
Criminal courts hierarchy
A
*look up image
23
Q
Safeguards of adversarial process
A
- Presumption of innocence in favour of the accused. The prosecution has the onus of proof
- Indictable (more serious) offences are initially heard in the Magistrates Court to determine if there is a prima facie case (ie. that a jury could, based upon the evidence, find the defendant guilty)
- Right to trial by jury (Australian Constitution, s.80)
24
Q
Inquisitorial system
A
- European system arising from civil legal systems (as opposed to common law)
- Judge is central to the proceedings
eg. controls aspects such as who is called to give evidence, how that evidence is provided etc. - Aim is for the judge to discover the truth
- Lawyers assist the judge rather than advocating for their client
25
Specialist courts
have “limited or exclusive jurisdiction in a field of law presided over by a judicial officer with experience or expertise in that field” (Freiberg, 2004, p.2)
26
Examples of specialist and problem-oriented courts: family violence courts
- Designed to reduce violence (primarily) against women by intimate partners
- Links to medical practitioners, treatment providers, social services etc
- In some jurisdictions they have increased sentencing options to achieve desired outcomes.
- Evidence of success is mixed.
27
Examples of specialist and problem-oriented courts: drug courts
- Can be both a specialist court and problem-orientated court
- Take a multi-agency, multi-faceted approach to managing offenders
- Typically combine monitoring of the offender, treatment (encouraged through a combination of rewards for compliance, and sanctions for non-compliance), life-skills programs to address offender needs, other conditions as appropriate.
- Evidence of success is mixed
28
Examples of specialist and problem-oriented courts: Aboriginal courts
- Address issues of Aboriginal people both as defendants and victims
- Predominantly specialist courts (not problem-orientated courts), but do engage in some problem-solving activities
- Evidence of success is mixed, but largely depends upon how ‘success’ is defined
- > Aboriginal people typically have more trust in Aboriginal Courts.
- > Despite Aboriginal Courts, re-offending rates remain high
29
Examples of specialist and problem-oriented courts: Mental impairment courts
- Aim to identify and intervene early with defendants with impaired mental and intellectual functioning.
- Again, evidence of ‘success’ is mixed.
30
Examples of specialist and problem-oriented courts: court interventions
- In addition to having problem-orientated courts, some court-based diversionary interventions exist.
- Idea is that ‘ordinary’ courts can adjourn proceedings to enable the defendant to undertake some treatment/intervention program/course to address their behaviour. Successful completion is then taken into account at time of sentencing.
- Many court interventions relate to addressing alcohol and/or drug issues.
31
History of victims
- In primitive societies victims allowed revenge
- Compensation was available as a remedy for centuries
- Later, private prosecutions were made available to seek redress
- Private injury eventually became a ‘public wrong’ committed against the State
- > Concept of ‘Kings Peace’
- > Victims reduced to prosecution witnesses
- Development of a ‘professional’ criminal justice system further isolated victims
32
Victims and police
- Victims are often initially satisfied with police response, BUT
- Important for victim satisfaction that police keep them informed about progress of the case
- Victims tend to expect police to inform them of support services
- Often victims of sexual assault, domestic violence, hate crimes and victims from socially marginalised groups consider police as not being sympathetic enough
33
Prosecutions and victims
- Majority of victims are satisfied with prosecutors
- Most Australian jurisdictions have a victim witness service
- > keeps victims informed of case progress
- Most victims don’t get to participate in the prosecution
- > guilty pleas; negotiated pleas
- Some jurisdictions give victims a voice in charge bargaining
34
Victims and courts
“Victims are often dissatisfied with, even distressed by, what happens in Court” (O’Connell & Hayes, 2014, p.329)
Some common issues for victims in courts:
- > “a lack of safe waiting areas and facilities that separate them from the accused and defense witnesses
- > resenting the amount of time that they have to spend waiting to give evidence, and
- > Difficulty following the court proceedings due to insufficient information” (O’Connell & Hayes, 2014, p.329)
35
Victims and corrections
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Victims generally have a right to know:
offender’s classification
- if escape from custody occurs
- release dates
- parole application outcomes
- return to custody
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- Some corrective service agencies have set up Victim Support Units
- Victims Registers
- Victims rarely participate in parole hearings
36
Focal points in restorative justice
- Typically afford greater time to the matter than court hearings
- All parties participate to negotiate outcomes
- Offenders must actively engage in the process (cf. court, where defence lawyer speaks on behalf of the offender)
- Focus is on what offender will do to make right the wrong they committed
37
Youth justice conferencing
- RJ part of juvenile justice in Australia and New Zealand
- Participants: convenor, police, offender and their support person, victim and their support person
- Structure of conference: intro, storytelling, agreement
- “Success” may depend upon offenders apologising and victims forgiving
- Again, keeping victims informed of progress is important (eg. how the young person is progressing in completing the agreed outcome)
