legal studies unit 3- criminal justice system

principles of justice

fairness:
impartial and just treatment/ behavior without favoritism or discrimination.
often have to treat someone differently to treat them fairly.


should be able to present their best case .
understand the case against them and have the opportunity to disprove it.

equality:
the status of being the same, especially in status, right, or opportunities. (age, gender, race, disability)


having equal opportunity to present a case.
having a judge/ jury free from bias when making decisions.

access:
the means or opportunities to approach or make use of the legal system and its resources regardless of class or social economic status.


having access to legal representation, advice, information and assistance.
ability to pursue a case.
utilise procedures, institutions and methods that help resolve cases.

key concepts in the victorian criminal justice system

summary and indictable offences:


summary offences: minor criminal offences heard in the magistrates court with no right to a jury trial. final hearing called a hearing.


indictable offences:
serious criminal offences heard in the county or supreme court. a jury trial if the accused has pleaded not guilty.
final hearing called a trial.


indictable offences heard summarily:
serious offences heard by a magistrate in the magistrates court as if it was a summary offence. only if the accused agrees.
criminal procedure act 2009 states indictable offences punishable by imprisonment of 10 years or less can be heard summarily.

burden of proof:
the responsibility of a party to prove the facts of the case. always lies with the prosecution (the party bringing the case) unless it can be reversed. (in cases such as drug cases where the the defendant needs to prove they dont own or didnt knowingly possess drugs in their position, where accused is found in possession of a knife they may need to prove reasonable use of knife.)

standard of proof:
beyond reasonable doubt. the judge or jury must be able to answer no to the question 'is there any possibility that the accused is not guilty' before they can find the accused guilty.

presumption of innocence:
guarantee that the accused will assumed to be innocent until charge has been proved beyond reasonable doubt. upheld through the burden and standard of proof, bail, the right to silence, police need a reasonable belief in a persons guilt before they can arrest, prior convictions not known until sentencing, and the right to appeal a wrong conviction.

rights of the accused

right to be tried without reasonable delay:
accused is entitled to have their charges heard in a timely manner, delays should only occur if considered reasonable.
children must be brought to trial 'as quickly as possible'.
greater burden on prosecution.
accused entitled to this right regardless of prior history or personal attributes such as age, breastfeeding, disability, gender identity, marital status or pregnancy.
the right accepts that there will be delays, but must not be unreasonable

right to a fair hearing:
have the charge decided by a competent, fair, and impartial court after a fair and public hearing.

right to trial by jury:
a trial by others in the community.
magna carter- no free man shall be imprisoned except by the lawful judgement of his peers.
allows for community participation in legal process and for law to be applied according to community standards.

rights of the victims

right to give evidence as a vulnerable witness:
a person who is required to give evidence in a criminal case and is considered to be impressionable or at risk.

right to be informed about proceedings
-requires investigatory agencies, prosecuting agencies, and victims services agencies to provide clear, timely and consistent information about support services, possible compensation entitlements, and the legal assistance available to persons affected by crime.

  • victim must also be informed about the progress of investigation into a criminal offence

the victim must receive the following information once prosecution has commenced:
-details of the offences charged against the person
-if no offence is charged, reason why

  • how victim can find out the time, date and place of the hearing of charges
    -outcome of criminal proceedings, including sentences imposed
    -details of any appeal

right to give evidence as a vulnerable witness: alternative arrangements
alternative arrangements are applicible for

  • sexual offences
  • family violence offences
  • offences for obscene, indecent, threatening language or behaviour in public
  • offences for obscene behaviours or exposure in public places

right to give evidence as a vulnerable witness: types of alternative arrangements

  • witness may give evidence from a place other than the courtroom by means of closed circuit television

-screens may be used to remove the accused from the direct line of vision of the witness


  • support person chosen by the witness may be present in the courtoom while giving their evidence

right to give evidence as a vulnerable witness: protected witnesses
the court is able to declare at any time that a witness is a protected witness in criminal proceedings for sexual offences and family violence offences.


  • protected witnesses may be the complainant, family member of the complainant, family member of the accused, or any other witness.


  • must not be cross examined by the accused. must be conducted by the accuseds legal representative.

  • if the accused doesnt have any legal representation, court must order VLA for the accused for the purpose of cross examination.


  • witness has no direct contact with the accused in court

right to give evidence as a vulnerable witness: special arrangements for persons under the age of 18 years or with a cognitive impairment

  • occurs in criminal proceedings for sexual offences, indictable offences involving assault, injury or threat of injury to another person, and offences involving child pornography


  • evidence in chief using audio recording


    -special hearing arrangements for sexual offence cases for complainant under the age of 18 or with cognitive impairment include:


    -accused is not in the same room during special hearing


    -accused acn not see or hear complainant giving evidence


    -evidence must be given on a closed circuit television

right to give evidence as a vulnerable witness: improper questions

  • when a vulnerable witness is being cross-examined, the evidence act ensures that there are no improper questions.
  • includes questions that are confusing, harassing, intimidating, offensive or humiliating

right to be informed about the likely release date of the accused
victims of criminal acts fo violence may apply to be included on the victims register.
-if registered, they may recieve information about offender that has been imprisoned, including:
-likely date of release
-release of parole (provided at least 14 days earlier


  • the offenders release date is likely to be of interest to a victim who has suffered violence from that person.

other rights for vitims register victims include:
-right to know length of sentence
-right to be told if offender escapes from prison

victoria legal aid
government agency that provides free legal advice to the community, and low cost or no cost legal representation to people that connot afford a lawyer.


  • purpose of VLA is to make difference by resolving and preventing legal probems, encouraging a fair and transparent justice system.

types of aid
-free legal information: free publications and resources about criminal law, and have a public law library with legal materials. free legal info is also available over the phone or online for people in rural areas
everyone is elegible

types of aid
-free legal advice: provided in person, by video conference or over the phone


-elegibel to those who cannot afford a orivate lawyer, have a disability, homeless, children, indigenious australians, risk of family violence, cant speak/read/write english

community legal centres
-independant community organisation responsible for providing free legal assistaance to services to members of the community.


roles of CLC is to provide information, legal advice and minor assistance. duty lawyer assistance and legal casework services.

basic legal information
-CLCs provide basic legal information on a day to day basis, alot of information can be accessed online

types of aid
-free duty lawyer services: a person who is at court on a particular day and who can help people for a hearing.
-fact sheets
-offer legal advice
-represent accused in court (only magistrates and childrens court, not available for indictable offence trials.)
must meet income test to be elegible

types of aid
-grant of legal assistance: legal advice, helping the accused resolve matters in disputes, preparing documents and representing accused.
must meet means test to be elegible.

initial legal advice
provide preliminary assistance, and helps with writing short letters and completing forms
able to visit community legal centres for free without an appointment to access legal information and advice.
advice is also accesible on the phone.

duty lawyer assistance
provide assistance or representation for urgent matters that will be completed iin one day

legal casework
legal representation and assistance, ongoing legal services

committal proceedings
-pre trail procedure that is used for indictable offences not heard summarily, and when an accused pleads not guilty.

purposes
-determine whether evidence is of sufficient weight to support a conviction by a jury at trial
--ensure a fair trial. ensure that prosecutions case against accused is adequately disclosed , enabling accused to read or hear evidence and cross examine prosecution witnesses.
-clarify the issues before attending trial, avoid taking matter to trial if evidence is flimsy.

  • determine how the accused proposes to plead to the charge or charges

plea negotiations

  • the parties will consult with one another at any stage during the trial and agree that if the accused pleads guilty, the prosecution will either reduce the number of charges or downgrade the charge to a less serious charge.
  • once accused pleas guilty, the judge will decide upon the sentence sentencing options available to the judge will be reduced because charges have been reduced, therefore accused is at benefit from a lower sentence.

purposes
-to resolve a case by a guilty plea to a charge that reflects the crime that has been committed.

  • to achieve a faster resolution to a criminal case without cost, time, stress, trauma, and inconvenience of a criminal trial.

appropriateness of plea negotiations

appropriate

  • certain that an outcome will be achieved promptly (trial delays can lead to unfairness).
  • when accused is willing to cooperate in the investigation or prosecutions.
  • strength of prosecutions case is likely to lead to conviction.
    -victims, families, and witnesses are spared the trauma of giving evidence at trial

not appropriate
-downgrading charges may lead to people lose faith in the justice system.
-the victim does not testify against accused
-the accused evidence may benefit the prosecution if negotiations fail.
-when the victim does not wish for lesser charges.

sentence indications

  • accused will request to the court to let the accused know the likely sanction they will recieve if they plead guilty to the offence at the first possible opportunity.
  • if the court indicates that they will not impose the sanction of imprisonment, and the accused subsequently pleads guilty at that point, the court must not impose the sanction of imprisonment.

sentence indications for indictable offences

  • accused must apply for sentence indication: court may refuse sentence indication if there is insufficient information about any impact of the offence on victims.
    -the prosecution must consent
  • an indication as to whether the immediate sentence of imprisonment is likely to be imposed

sentence indication for summary offences

  • can be given any time by the magistrate
    -no need for prosecutions consent
    -indication: imprisonment or sentence of another type is likely to be imposed. (if court gives sentence indication and accused pleads guilty at the first opportunity, court must not impose more severe type of sentence than indicated.

purposes
-provide accused with clarity about sentence that will be imposed, so as to make a decision of a early guilty plea.
-provides accused with sentence indication may save time, costs, resources, stress, and inconvenience to the victims and society if the accused pleads guilty.
-providing accused with sentence indication can save time, costs, resources, stress, and inconvenience to the victims and society if the accused pleads guilty.

appropriate

  • borderline cases when it is not clear whether imprisonment should be imposed.
  • if accused has applied
  • victimless crimes (drug offences and fraud) where the victims views do not need to be taken into consideration.

not appropriate

  • if information about the impact of offence on victim isn't available.
  • if prosecution doesn't consent
  • serious indictable offences where imprisonment is certain if found guilty (murder, serious drug offences)