Unit 3 - AOS1 - The Victorian criminal justice system

Fairness

All people should be able to particiapte in the justice system and itrs processes should be impartial and open

EG.

• impartial judges, juries and magistrates

Equality

All people engaging with the justice system and its processes should be treated in the same manner, if same treatment causes dispartity adequate measures should be taken to allow all to engage without disadvantage

EG.

• use of a interpreter

Access

All people should be able to engage with the justice system and its processes on an informed basis

EG.

• victims should be informed about preceedings

Victorian legal aide

Government agency that provides free legal information, advice and representation for those in the community who cannot afford a lawyer

• aims to provide legal aide in a efficient, effective, affordable manner essentially increasing access to the justice system

EG. VLA assits 30% of those in regional Australia

VLA - Types of assistance for the accused

• legal information - educates the community on legal matters, criminal law procedures and general legal support, different laguages, website, brochures and over the phone + free and accessible to everyone

• legal advice - court proceedings that will apply to a specific case, over the phone, in person, video call - eligiable accused persons (based on income)

• duty lawyer - lawyers present in the magistrates court on a particular day and are able to provide case specific advice for hearings occuring on the same day - extend to representation (income test)

• grants - capped, available for those who satisfy the means test

VLA - Types of assistance for the victim

• free legal information - website, Victims legal Service Helpline

• Victims Legal Service helpline - free legal information/advice regarding applying for financial aide from the victims of a Crime Assistance Tribunal or filing for compensation from the offender

• duty lawyers - assist victims with applying for an intervention order

Community legal centres

Independent not for profit organisation that provides high quality and accessible legal support and education to members of the community

• Generalist CLC - broad legal services for people in a particular geographical area

• Specialist CLC - Legal services to particular groups of people EG. The Womens Legal Service Victoria

Community legal centres and the accused

• legal information - educate the community on legal matters, criminal law proceedings and general legal suppor, specialist CLCs - detailed infornation in regards to their area of expertise tailored towards the type of person they specialise in assisting

• legal advice - assists with completing forms, filing relevant applications over the phone or in person

• Ongoing legal assistance – minor criminal matters due to reliance on VLA for funding limiting them from assisting indictable offences

• Provide legal representation - Considering the type of legal matter, if the CLC specialises in those matters, if the accused is eligible for VLA

Community legal centres and the victim

• Provide legal information - legal matters, criminal law proceedings and matters in person or online - specialist CLCs - detailed infornation about their area of expertise or tailored towarss the type of person they specialise in assisting

• legal advice - information online, in person and over the phone regarding filing relevent applications, completing forms

• Duty lawyers - assists victims with intervention order hearings

• Provide legal representation - rare and generally in relation to family violence or other intervention orders

Plea negotiations

Informal pre trial discussions which take place between the accused, their defence and the prosecution aimed at resolving a case through an agreement being reached between parties by the accused pleading guilty to generally a lower charge

• negatotiations take place without prejudice bias meaning any offers made during negotations will not be used against any party even if they are not successful

A plea negotiation could result in

• The accused pleading guility to fewer charges with remaining charges not proceeding

• The accused pelading guilty but an agreement being reached about the facts on which the plea is based

• The accused pleading guilty to a lesser charge - an alternative offence with lesser punishment EG. murder to manslaugter, armed robbery to theft, drug trafficking to drug possession

Jurisdiction - original and apellate

The power and legal authority for a court to hear a case

• Original jurisdiction - the ability or power for a court to hear a case for the first time

• Apellate jurisdiction - The ability or power for a court to review a case after the original trial through an appeal

Magisrates court - original and apellate jurisdiction

Original jurisdiction

• summary offences, indictable offences heard summarily, warrant applications, bail hearings

No appelate jurisdiction

County court - original and apellate jurisdiction

original jurisdiction

• indictable offences - armed robbery, serious drg offences

Apellate jurisdiction

Appeals from the magistrates where:

• the offender appeals against the conviction (guilty verdict)

• The offender (too harsh) or prosecution (too lenient) appeals the sentance imposed (sanction)

Supreme court - Trial division - original and apellate jurisdiction

Original jurisdiction

• Unlimited jurisdiction but conducts trials for the most serious indictable offences - murder, maslaughter and terrorism

Apellate jurisdiction

Appeals from the magistrates based on questions of law

• Whether the right area of law has been applied

Supreme court - Court of Appeal - original and apellate jurisdiction

No original jurisdiction

Apellate jurisdiction

Appeals for cases originally heard in the county court or supreme court trial division

• appeals against the sanction imposed, question of law and appeals against a conviction

Specialisation

A courts ability to develop expertise in specfic areas of law as a result of hearing similar matters regularly, allowing criminla cases to be resolved in a more efficient manner

Appeals

If a party is unsatisfied with the outcome of a case they may appeal the final decision and have it reviewed by a higher court - this party is known as the apellate

• The apellate has the responsibility of proving they have valid grounds to seek appeals and be granted leave to appeal - an appeal is not an automatic right

Grounds for appeal

• Appealing the sanction imposed - the prosecution may argue the sanction does not adequately reflect the severity of the crime, the offender may appeal the sanction being too excessive

• Appealing on the question of law - The legislation beening incorrectly interpreted or applied

• Appealing the conviction - The party appealing the jury or judical officers verdict

Judge

An independent authority who presides over a trial in the county court ensuring procedural fairness by overseeing all personnel and evidence

• Justice - judge in the higher jurisdiction courts - supreme court trial division

Magistrate

An independent authority who prosides over trials in the magistrates court for summary offences, committal proceedings ect

Role of a judge or magistrate

manage the trial

• ensure hearings are on time

• ensure correct procedures and rules of evidence have been followed

• control the amount of witnesses

Apply rules of evidence

• whether evidence is allowed

• witnesses examed and cross examined in a timely manner

Direct the jury/determine guilt

• Follow Jury Directions Act 2015 (Vic) - explain key concepts such as BOP and SOP

• magistrates have the responsibility to determine guilt

Impose a sanction

• if the accused is convicted the judge must carry out sanctions in line with the crimes act 1958(Vic) which outlines maximum sentances and the Sentancing act 1991(Vic) which provides sentancing principles/considerations

Jury

Pre trial the judge informs the jury of their obligations to deliver a verdict solely based on evidence and facts

Jurors cannot

• conduct personal evidence

• discuss the triak with anyone except other jury members inside the courtroom

• view extraneous infomration about the case

• have relations with eother party

• hold a position of power (police officer)

• have a criminal record

Roe of the jury

• Remain objective - independent/unbaised towards both parties, if they believe they are unable to remain impartial - excused duirng jury empanelment

• listen to evidence - carefully and objectively to ensure etheir verdict is based on relevent evidence and the facts - they must be alert, take notes and listen to directions by the judge

• determine the verdict - a gulty verdict beyond reasonable doubt based soley on evidence, disregarding personal opinions - A verdict of 12/12 jurors should be met but in some cases a majority verdict of 11/12 is accepted after 6 hours of deliberations

• judges directions - Always follow explanations of legal terminology and apply it to cases as directioned from the judge

Role of the prosecution (3)

Opening and closing statements -

• Start of the trial - Statement outlining charges against the accused, evidence they intend to rely on,

• Conclusion of the trial - Statement summarising their arguments and why the accused is guilty BRD

Determine which witnesses will give evidence - All relevant witnesses rather then just those who will support a guilty verdict to allow the full truth

Present evidence at trial – To prove the accused guilty BRD

Role of the accused (3)

Enter a plea of guilty or not guilty –

• if pled not guility the matter will proceed to trial,

• If pled guilty the matter proceeds to a sentencing hearing, the prosecutor will read out all of the alleged facts and prior convictions of the accused allowing them to disagree with the facts presented, the magistrate or judge will then announce an appropriate sentence

Present evidence/decide which witness to call – present evidence to disapprove of the prosecutions case and cast a doubt in the juries mind

Decide which lawful defences to put forward – a defence for their actions eg self defence to mitigate their sentance , the onus to prove this defence is on the accused

The need for legal practioners

Parties including accused individuals of indictable offences should have legal practitioners to assist them in understanding their legal rights and how to present their case in the best light.

Solicitors

legal practitioners who primarily assist clients with

• day to day legal matters

• offer advice and strategies to address a wide range of legal issues outside of the courtroom or prior to the trial

• prepare legal documents

• represent clients in court  

Barristers

legal practitioners who act as legal representatives and are formally trained in court advocacy and cross examining

• operate independently, self-employed therefore can provide individual advice

• receive instructions from the solicitor managing the case in regards to their courtroom actions.

• Barristers are specialists in a court room ( having passed the bar exam) – allowing them to present evidence, cross examine witnesses and deliver arguments effectively

Importance of legal representation

• Essential for upholding the rule of law – for the accused to receive a fair trial, the court has the power to adjourn cases until legal representation has been provided

• Self represented accused may not understand the criminal justice system and may not knowhow to test the evidence/cross examine witnesses

• witnesses being directly questioned by the accused can be traumatic

Issues with cost

The costs associated with the criminal justice system may be significant for the accused if they seek legal representation

A legal practioner may charge $800 per hour for their work

• solicitor and barrister fees -

• The strict eligibility requirements of VLA mean only a limited number of individuals are able to receive legal representation - leading to an increased number of self represented parties

• Trials for self-represented parties take longer due to unfamiliarity - increases costs

• appealing to a higher court - filing fees - paid by the party initiating the appeal, solicitor, barrister

Strategies to overcome costs

• VLA or CLC – if taccused parties pass the means or income test they may receive legal representation or grants

• committal proceedings, plea negotiations minimise costs of a trial

• If the accused is acquitted they may ask the court to award costs in their favour

• if the accused successfully appealed against a conviction - they can apply for the appeal costs board to recover costs associated with the appeal

Issues with time

In 2021 to 2022s financial year 83000 criminal cases were waiting to be heard by magistrates court across Victoria

Although the accused has a right to have their case heard without unreasonable delay, delays may occur due to the complexity of the case - gathering evidence, interviewing witnesses, determining what charges should be laid

• Delays impact the reliability and accuracy of the evidence

• The longer the delay – the longer the stress and anxiety of victims will last

• impacts the comminity saftey - if those accused with a criminal offence remain in the community for longer

Stretegies to overcome delays

• Plea negotiations

• commital hearings

Issues with cultural differences

Individuals who may be immigrants, refugees, asylum seekers and first nations peoples may be impacted by cultural differences

other then English Vietnamese at 29.3% is the most common language spoken

• Those with limited English - struggle giving accurate evidence

• self represented accused - difficultly questioning the prosecutions evidence and preparing lawful defences

• unaware of their rights - unfamiliarity with the justice system

• First nations people may experience difficulties engaging with the justice system - language barriers, direct questioning techniques body language cultural taboos

Strategies to overcome cultural difference barriers

• The human right charter states that individuals who do not speak or understand english should have to right to an interpreter

• The Koori court respects first nations culture which first nations peoples may turn to

Purposes - Sentancing act 1991

• Punishment

• denunciation

• deterance - specific and general

• protect

• rehabilitation

Rehabilitation

aims to reform an offender by changing their criminal attitude and behaviours in order to prevent them from committing crimes in the future

• Address the underlying cause of offending

• CCOs can promote rehabilitation

• For rehabilitation to be achieved the offender must display remorse

Punishment

Designed to penalise the offender and display to the community that criminal behaviour will not be tolerated

• Courts administer punishments to allow victims and the general public to feel as though justice is being served and avoid them taking matters into their own hands

Deterrence

Aims to discourage the offender and others in the community from committing similar offences

• General deterrence – designed to discourage others in the community from committing similar offences

• Specific deterrence – designed to discourage the offender from reoffending

Denunciation

Sanctions designed to publically demonstrate the communities disapproval of the offenders actions

• Done at the end of the trial when the judge comments outline the courts condemnation - may be ineffective at addressing the offenders behaviour compared to other sanctions

Protection

designed to safeguard the community from an offender by preventing them from committing further offences in the future

FInes

A sum of money that the offender is ordered to be pay to the state of Victoria

• 2 is the highest level (30000 penalty units) – 12 is the lowest level (1 penalty unit)

Factors condidered in determining the amount of fine

• Financial circumstances – eg. high socioeconomic status = larger fine

• Whether other orders have been made – eg. ompensation

• Any loss, destruction or damage – to the victim, property as a result of the offence

purposes of fines

Punishment –

• Financial circumstances and their ability to pay

• The amount of fines – high enough to be a burden

Specific deterrence

• Financial circumstances and their ability to pay

• The amount of fine - high enough to be a burden, deter them from committing further crimes

 General deterrence

• The amount of the fine

• Circumstances of people in the community – a larger fine

Community corrections orders

Non custodial sanction (does not involve a prison sentence) and is served in the community with conditions attached to it

• Helps address the underlying cause of criminal behaviour – to modify the offenders attitude or behaviour and allow them to be integrate back into society

• can be combined with imprisonment (to avoid the affects of going to prison long term)

Core conditions of CCO

• Must not commit another offence punishable by prison

• Must report to a specified community correction centre within two working days of the order coming into force

• Must report to and receive visits from the community corrections officer

• Must not leave Victoria without permission

Additional conditions CCO

• Unpaid community work

• Treatment or rehabilitation

• Curfew

• Place and area exclusion

Purposes of CCOs

Specific Deterrence

• Length of the CCO – shorter CCO periods are less punitive

• Mandatory conditions may be punishing – EG. Not being able to leave Victoria

• Additional conditions – may act as a burden

General deterrence

• Conditions imposed/nature of CCO – harsh conditions may disapprove people

Denunciation

• Lengthy CCO - send strong messages of courts disapproval

• The conditions imposed - harsh conditions may display the disapproval of society

Rehabilitation

• Conditions imposed – address the underlying cause of the offenders actions

Imprisonment

Removing the offender from society for a stated period of time and placing them in prison, depriving offender of their freedom and liberty

• Sentences with parole (supervised and conditioned release of a prisoner after the minimum period of imprisonment has been served) – Determined by the Adult Parole Board

• Level 1 (life imprisonment, 25 years), level 9 (six months)

Purposes of imprisonment

Protection

• offender as a threat to society is removed and unable to harm

• Offenders are eventually released – recidivism rates

 Punishment

• Length of imprisonment – deprived of freedom and liberty, communication with friends/family/employment

Deterrence

• Length of imprisonment – fear of receiving a similar punishment again

*42% of prisoners are likely to reoffend when released*

Denunciation

• Long sentence – courts to display their condemnation of that behaviour and their intolerance towards said behaviour  

Aggravating factors

facts or circumstances about an offender or offence that lead toa more severe sanction – increases the offenders culpability and the sentence

• The offence was planned

• Use of violence

• The nature and gravity of the offence – severity

• Motivated by hatred, discrimination or prejudice

• Occurred Infront of children

• Prior convictions of the offender

Mitigating factors

Facts or circumstances about an offender or offence that can lead to a less severe sentence – decreasing the offenders culpability and lead to a reduced sentence

• The offender showed remorse

• No prior criminal history

• The offender has shown effort towards rehabilitation

• The injury was not substantial

• The offender pleaded guility

Guilty plea

when an offender admits to guilt which is considered by the court when sentencing

• The offender is taking accountability and acknowledging that they did the wrong thing

victim impact statement

If a person is convicted or pleads guility for a crime the victim can make a statement to court about how they have been affected by the crime, mentally, physically, emotionally and socially

• acts as a mitigating or aggravting factor

• If the primary victim is too vulnerable - someone can make one on their behalf