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AOS 1 - Coggle Diagram
AOS 1
COMMAND TERMS
Analyse: examine a complex feature, issue or concept by breaking it down into smaller parts and showing how they relate to one another.
Compare: To explain or discuss how concepts, definitions or features are similar and different, through identifying the qualities or features they have in common/ones they don't.
Define: To state the exact nature, features or meaning of a term, concept or feature.
Describe: To give a detailed account of a system, process of feature.
Discuss: To give a reasoned argument for AND against a particular issue, providing strengths and weaknesses which are applicable.
Distinguish: To explain the differences and distinct characteristics.
Evaluate: Identify key features and asses their merits by discussing the strengths and weaknesses and providing a
concluding judgement
about the overall benefit or worth of the evaluated topic. Typically done to 'evaluate the extent' and should include an adverb qualifying your contention.
Examine: To consider in detail and establish the key facts and important issues related to a topic or issue.
Explain: To clarify a point, feature or concept by describing it in more detail or revealing relevant facts about it.
Identify: To state or recognise a feature of factor and provide basic facts on it (mark dependent)
Justify: To show or prove a statement, opinion or contention to be right or reasonable by providing evidence or examples (or using stimuli).
To what extent: To describe the degree or level to which a statement, opinion or contention is, or is believed to be, correct or valid. Should include a qualifying adverb, such as "sufficiently", "moderately", "strongly", etc.
DP 9: The roles of key personnel in a criminal trial, including the judge, jury and the parties
The judge
Will oversee the case and act as an umpire at trial/hearing, to ensure all correct trial procedures, including instructing the jury.
Give directions to the jury to ensure a fair trial, including informing the jury of rights, like the accused's right to silence.
Once the trial concludes, summarise the case to the jury. Includes explaining the law involved, identifying evidence that will assist the jurt and refer to the way the parties have presented their cases.
Explaining the term 'beyond reasonable doubt' to the jury, and how this should be the basis of their verdict.
The jury
BE OBJECTIVE: Be unbiased and open-minded, removing prejudice or pre-conceived notions.
LISTEN + REMEMBER EVIDENCE: It is up to the jury to make sense of evidence presented that will help assist their verdict,
UNDERSTAND DIRECTIONS AND SUMMING UP: At the end of the trial, the judge will give jury directions, including points of law and to sum up the case. The jury must listen and ask any legal point they don't understand.
DELIVER A VERDICT: The jury must take part in private deliberations and form an opinion on which party's story or arguments they believe. Deliberations should be without pressure from other jurors and will be confidential. Their verdict must be unanimous and be beyond a reasonable doubt.
Jurors are unbiased, independent members of the public who represent the values of the community in making a unanimous verdict. However, there are still risks of unconscious biases or prejudices that can influence the case. It may also be difficult to navigate the criminal justice system without the prior knowledge. Their decision making process is also confidential, meaning it is never known how the jury reaches their verdict.
The accused (the defence party)
PARTICIPATE IN THE TRIAL/HEARING: The accused can either fully partake or stay silent during trial/hearing.
If they do partake...
Present their opening address.
Present evidence in favour of their case.
Cross-examination of witnesses called by the prosecution.
Presenting their closing address.
MAKE SUBMISSIONS ABOUT SENTENCING: the offender is entitled to make submissions about sentencing. This means the offender will attempt to obtain the most lenient section.
This occurs by...
Plea negotiations
Appeals
The prosecution
DISCLOSE INFORMATION TO THE ACCUSED: the prosecution must disclose any and all relevant information to the accused. The accused must be informed of the evidence that will be used against them and any material that may assist the accused's case.
PARTICIPATE IN THE TRIAL OR HEARING: During the trial or hearing, the prosecution must present their case.
This includes...
Presenting the opening and closing address.
Presenting the evidence which supports their case.
Cross-examining witnesses called by the accused.
MAKE SUBMISSIONS ABOUT SENTENCING:
If the accused pleads guilty early in the process in order to enter plea negotiations, the prosecution will be responsible to engage in plea negotiations.
The magistrate
Decides whether the accused is guilty of committing a crime.
Required to listen to both party's cases.
Decide on the facts of law if the accused is guilty beyond a reasonable doubt.
Why are legal practitioners needed?
A self-represented person lacks the objectivity to be able to make the right decisions.
A person who represents themselves lacks the skills and expertise to navigate the criminal justice system. This includes being able to navigate procedures such as plea negotiations, trial procedures and navigating the examination of witnesses.
For traumatic or difficult cases, it avoids a situation where the accused is directly questioning witnesses, such as victims of a crime, which can risk the victim being retraumatised.
Although the court and judges can assist self-representing accused persons to some extent in understanding the processes, this cannot extent to advocating on behalf of the accused person.
DP 11: The purpose of sanctions
Rehabilitation
Address the underlying factors which are causing the offending and then aiming to "fix" them, in order to assist the offender in reintegrating into society and reforming their actions.
Fines do not address this.
CCOs somewhat address this.
Imprisonment addresses this.
Protection
Deterrence
Specific (the offender)
Aims to target the offender and specifically discourage them from committing similar offences, or recidivism.
Recidivism: refers to the act of reoffending. To return to crime after already having been convicted.
General (the community)
Denunciation
Aims to communicate and show the court and the community's disapproval of the criminal actions of the offender.
Fines address this.
CCOs address this.
Imprisonment addresses this.
Punishment
Aims to penalise the offender for their actions and show society and the victim that criminal behaviour will not be tolerated.
Fines address this.
CCOs address this.
Imprisonment addresses this.
DP 1: The distinction between summary and indictable offences
Summary offences are LESS serious. Indictable offences are MORE serious.
Also differ on the courts which they are heard in.
Summary offences will only be tried in the Magistrate's Court.
Indictable offences will only be tried in the County or Supreme Court.
Indictable offences heard summarily
A serious offence that is heard as a summary offence as the court and the accused agree (to do so).
Will be heard in the Magistrates Court, without a jury. Disables the accused's right to a jury (Aus. Constitution, s80)
INDICTABLE OFFENCES
Will require a committal hearing
The nature of the offence is serious.
It will be heard in the County or Supreme Court.
The name of the final hearing is referred to as a trial.
The statute where offences are contained is the Crimes Act 1958 (Vic)
Some indictable offences may be heard summarily, under particular criteria and circumstances fitting.
SUMMARY OFFENCES
The nature of the offence is less severe; it refers to more minor crimes,
The court which hears these offences is the Magistrates Court (including divisions at the same level in the court hierarchy)
There is no use of committal hearings for cases.
The name which is used to refer to the final hearing is, hearing.
The statute which contains the offences is the Summary Offences Act 1966 (Vic)
DP 4: The rights of the victims
The right to give evidence using alternative arrangements
Measures which can be put in place that are designed to protect the victim from further trauma, harm or stress.
The purpose of alternative arrangements is the minimise the trauma, distress and intimidation witnesses may experience when giving evidence, based upon the impact of the crime on the individual.
Alternative arrangements can be made when....
Sexual violence offences have occurred.
Family violence offences have occurred.
An offence for obscene, indecent, threatening language/behaviour in public has occurred.
An offence for sexual exposure in a public place has occurred.
*Criminal Procedure Act 2009 (Vic)
The right to be informed about the proceedings
Recognising those who are adversely affected by crime getting certain information about relevant proceedings and about the criminal justice system.
Once a prosecution commences, they are responsible to inform the victim of:
Details of the offences charged against the person.
if no offence is charged, then the reason why.
How the victim can find out the date, time and place of the hearing of the charges.
The outcome of the criminal proceeding, including any sentence imposed on the accused.
Details of any appeal.
Victims Charter Act 2006 (Vic)
The right to be informed of the likely release date of the offender
A register maintained by the state of Vic which provides victims of violent crime with relevant information about adult prisoners while they are still in prison, and when they are likely to be released in advance.
Victims Charter Act 2006 (Vic), Corrections Act 1986 (Vic)
THE VICTIMS CHARTER
A charter which recognises the impact of crime on the victim and the provision of information to the victim.
The objectives of the Victims Charter 2006 (Vic)
Recognise the impact of crime on victims.
Victims should be offered certain information during investigation and trial.
To reduce the likelihood of secondary victimisation.
The key principles of the Victims Charter 2006 (Vic)
Respectful treatment of victims
Respect for the privacy of victims
Ensuring victims are informed on information being brought to the court.
DP 12: Fines, community corrections orders and imprisonment + their specific purposes
FINE: A sanction which requires the offender to pay an amount of money to the state.
CCO: A flexible, non-custodial sanction that the offender serves in the community with specific conditions attached to the order.
IMPRISONMENT: A sanction which involves removing the offender from society for a stated period of time in prison.
DP 10: The impact of cost, time and cultural differences (in achieving the principles of justice)
COSTS
Legal representation
Availability of legal aid
Measures taken to address cost issues
VLA and CLC
Committal proceedings
Plea negotiations
TIME
Court delays
Measures to address time issues
Plea negotiations
Judge alone trials (employed during COVID)
The use of digital technology
CULTURAL FACTORS
Difficulties faced by First Nations people (who are overrepresented within the criminal justice system)
Language barriers
Direct questioning
Body language
Cultural taboos
Lack of understanding of court procedures
Measures to address cultural factors
Koori Court
Free interpreters
Information from Courts, VLA and some CLCs provided in different languages.
DP 6: The role of VLA and CLCs in assisting an accused and victims of crime
VLA
Provide legal aid in the most effective, economic and efficient manner.
Manage its resources to make legal aid available at a reasonable cost to the community and on an equitable base throughout Victoria.
Provide the community with improved access to justice and legal remedies
Pursue innovative means of providing legal aid to minimise the need for individual legal services in the community.
Ensure the coordination of the provision of legal aid and legal assistance information so that it responds to the legal and related needs of the community.
Can provide access to a duty lawyer in the Magistrates or Childrens Court. Priority access to a duty lawyer falls to people in custody and First Nations peoples.
VLA may be able to offer grants of legal assistance for those who can't afford a lawyer. It does require a means test to prove financial circumstances.
CLCs
Provide accused people with information, legal advice and ongoing assistance in a case.
Provide legal education to the community so that there is greater awareness of rights and understanding of legal information
To advocate for changes to the justice system to address what they see as unfair laws, policies or practices.
CLC offer basic legal information and basic legal education to some people.
CLCs can provide legal advice and preliminary assistance, such as assistance in writing forms or anything as such. They can help people apply for assistance grants from VLA.
They can provide casework or assistance for an accused, involving ongoing legal representation and assistance, for summary offences or IOHS only.
Assistance for victims
Navigating the criminal justice system.
Applying for family intervention orders.
Obtaining financial assistance or compensation from the offender or someone else.
Identifying any other supports that may be needed as part of a criminal case.
DP 5: The principles of justice: fairness, equality, access
FAIRNESS
Open processes
Impartial processes
Participation
All people can participate in the justice system and its processes should be impartial and open.
EQUALITY
Same treatment
Different treatment
People should be treated in the same way, unless it creates a disparity or disadvantage, then adequate measures should be taken to ensure and allow all individuals to engage in the process.
ACCESS
Engagement
Informed basis
All persons should be able to engage with the justice system upon an informed basis.
DP 3: The rights of the accused
The right to tried without unreasonable delay
As seen in s21 and 25 of the Victorian Human Rights and Responsibilities chart 2008
An individual must be tried as soon as possible unless there is a reasonable cause for delay. This excludes the time necessary to collate a case and bring it before the court.
The right to silence
Protected as a common law right
The accused has the right to not say or do anything while in custody. They also hold this right during trial. It cannot be interpreted as an indicator of guilt, or play a role in the decisions reached by the jury or the judge.
The right to trial by jury
Australian Constitution s80, Juries Act 2000 (Vic)
The accused has the right to be tried by a jury of twelve to determine their guilt.
DP 13: Factors considered in sentencing: aggravating factors, mitigating factors, guilty plea, victim impact statements.
Mitigating factors: Facts or circumstances about the offender or the offence that can lead to a less severe sentence.
The offender shows remorse.
The offender has no prior criminal history or is of good character.
The offender was acting under duress.
The offender has shown efforts towards rehabilitation, or has good prospects of rehabilitation.
The offender was under personal strain at the time or they have a unique background.
The effect that prison may have on the offender.
The injury or harm caused by the offence was not substantial or there was no risk to any people.
The offender was young or had some form of disability that did not make them fully aware of the consequences.
The offender pleaded guilty early.
Aggravating factors: facts or circumstances about the offender or the offence that can lead to a more severe sentence.
The use of violence, explosives or a weapon when committing the offence.
The nature and gravity of the offence.
Any vulnerabilities of the victim (ie. a child or a disabled person)
The offender being motivated by hate or prejudice against specific groups of people (hate crime)
A breach of trust by the offender towards the victim (ie. a close personal relation)
Prior convictions of the offender.
If the offence occurred whilst the offender was serving a CCO, or on parole or out on bail.
DP 8: The reasons for a Victorian court hierarchy in determining criminal cases, including specialisation and appeals
How does the court hierarchy assist in the determination of a case?
Specialisation
Develops areas of expertise.
Allows for them to create a more stream-line process
Reduces congestion of cases.
Appeals
Allows for the prosecution or the accused to appeal an outcome based on: sanction or questions of the law.
Jurisdiction
Original jurisdiction: the power of a court to hear a case for the first time.
"The point of origin" (where a case can be heard for the first time -> original jurisdiction of a court)
Appellate jurisdiction: the power of the court to hear a case in which a decision is being reviewed or challenged on a particular grounds.
DP 7: The purposes and appropriateness of plea negotiations
THE PURPOSES
Ensure certainty of the outcome of a criminal case.
To save costs, time and resources
Achieve a prompt resolution to a criminal case without stress, trauma and inconvenience of a criminal trial (or hearing).
A plea negotiation is a pre-trial discussion between the prosecution and the accused, aimied at resolving the case by agreeing on an outcome to the criminal charges laid.
DP 2: The principles of the criminal justice system
Concepts of the criminal justice system
The burden of proof
Lies with the party who brings the case to court, which is the prosecution. it is the obligation or duty of the party to prove a case,
The presumption of innocence
The right of a person accused of a crime to be presumed not guilty unless proven otherwise (beyond a reasonable doubt).
Beyond a reasonable doubt refers to the standard of proof in a criminal case. Requires the prosecution to prove there are no reasonable doubt(s) that the accused committed the offence,
The standard of proof
The degree/extent to which a case must be proven in court (by the prosecution).