The Victorian Criminal Justice System

indictable offences

serious criminal offences 

e.g. murder, culpable driving causing death

indictable offences courts

County and Supreme Court (TD)

committal hearings

pre-trial step in a serious criminal case where a magistrate decides if there is enough evidence for the case to proceed to a higher court for trial

summary offences

minor criminal offences

e.g. minor assault, theft

summary offences courts

Magistrates’ Court

indictable offences heard summarily

when indictable offences are treated as summary offences

conditions for indictable offences heard summarily

• less than 1200 penalty units and under 10 yrs imprisonment

• offender accused

why indictable offences heard summarily 

• quicker, cheaper 

• receive a lesser punishment 

presumption of innocence

the guarantee by a state to its citizens that they will be treated as being innocent until the charge has been proven beyond reasonable doubt

burden of proof

the responsibility of a party to prove a case

burden of proof - party

prosecution

standard of proof

the degree or extent that a case must be proven

standard of proof - criminal

beyond a reasonable doubt

presumption of innocence - burden of proof

by not having people prove their innocence but having the person who initiated the case prove their guilt

standard of proof aim

protects against wrongful convictions by preventing innocent people from being convicted and sanctioned

the right to trial without unreasonable delay 

ensures that an accused person has their case heard in a timely manner

the right to trial without unreasonable delay protection

Human Rights Charter

reasonable reason for delays

• give prosecution and defence time to make a case

• availablity of legal system - lawyers, judge, court

• people being unable to attend court for some reason

the trial without unreasonable delay purpose 

• causes unecessary stress and anxiety 

• increases cost 

• may impact the accuracy of evidence given 

right to silence

allows a person to remain silent when questioned

right to silence - protection

statute and common law

right to silence - purpose 

• protects presumption of innocence - not requiring people to prove their innocence 

• words can be misconstrued and/or twisted 

• coercion may occur during questioning 

the right to trial by jury 

anyone charged with an indictable offence is entitled to and must have a jury, made up of their peers, present at their trial

Right to trial by jury - protection

commonwealth - section 80 of Constitution

victorian - Criminal Procudure Act 2009, Juries Act 2000

right to trial by jury - purpose

• ensures that evidence is believed by a wide range of people

• decision is shared

• decision reflects community values

right to give evidence through alternative arrangement

allows victims to give evidence in a way that is not traditional

right to give evidence through alternative arrangement protection

Criminal Procedure Act 2009

Victims who excersise the right to give evidence through alternative arrangement

• family violence

• sexual assault

• threatening, obscene behaviour

right to give evidence through alternative arrangement purposes

• reduces secondary trauma

• ensures that evidence is true and accurate

right to be informed about the proceedings

how the police must inform all victims about court proceedings, charges, the accused’s pleas, trial details

right to be informed about the proceedings purposes

• get first priority

• gives them the choice to attend

right to be informed of the likely release date of the accused

how victims can be informed at least 14 days before the release date of the accused

right to be informed of the likely release date of the accused - avenue 

Victims Register 

right to be informed of the likely release date of the accused purpose

• can submit a statement disagreeing with choice

• prevents any re-hatching of violent behaviour or “revenge“

• allows them to prepare

fairness

all people can participate in the criminal justice system and its processes should be impartial and open

features of fairness

• impartial processes

• open processes

• participation

impartial processes

all people involved in the legal system

• independant

• unbiased

• make decisions based on evidence and facts

open processes

allows the public to view and scrutinised all processes and cases

equality

all people engaging in the justice system and its processes should be treated in the same way, however if the same treatment causes disparity or disadvantage, adequate measures should be implemented to allow all to engage with the legal system without disparity or disadvantage

types of equality

1. formal

2. substantive

formal equality

treating all people the same

substantive equality

is making adjustments to remove any disparities or disadvantages a party may face

access

all peopel should be able to engage with the justice system on an informed bias

features of access

• engagement

• informed basis

engagement

• people should be able to directly engage with the legal system

• any barriers doing this should be removed

Victorian Legal Aid

a government funded agency that ensures equal legal access to the legal system

ways that VLA aids accuseds

1. free legal information

2. free legal advice

3. ongoing legal representation

4. duty lawyers

grant of legal assistance

the way that people get money through legal aid to afford ongoing legal representation

duty lawyers

lawyers that are available on the day for any cases that may need them

eligibility requirements to receive a grant of legal assistance

• what they case is about

• the likely benefit to the perosn and the community

• financial information and circumstances of the person

general CLCs

provide broad legal services to people within a geographical area

e.g. Fitzroy Legal Centre

specfic CLCs

provide legal servcies to a particular group or for a particular area of law

e.g. YouthLaw

CLC aids

provide people with free

• legal services

• advice

• information

ways VLA aids victims

provide victims with suport and help to get into VOCAT

ways CLCs aid witnesses

support them when they need to testify in trials

obtaining protection orders

Strengths of VLA

• accessible

• services prioritise most vulnerable in society

• free

• multiple languages

Weaknesses - VLA

• information may not be enough

• not available to all that need - limited resources

Types of Assistance - CLC

• basic legal information

• initial legal advice

• duty lawyers

• legal casework

Strengths - CLC

• accessible - website

• multiple languages

Weaknesses - CLC

• insufficient funding

• many do not assist with indictable offences

plea negotiations

a tool used by the police to convince the accused to plead guilty through an incentive

Types of incentives - plea negotiations

• reduced charge - single offence

• removing some charges - multiple offences

purposes of plea negotiations

• save time, money and resources

• community - ensures a conviction - safe society

• courts - frees up space for more urgent matters

• prosecution - work on other matters

• victim - ensures offender is found guilty

plea negotiation - appropriate

• issues with availability, willingness or reliability

• prosecution does not have a strong case

• prosecution cannot prove the original charge

plea negotiation - not appropriate

• high profile case

• particularly violent crine

• victim does not want a lesser sentence

plea negotiations - strengths

• more prompt

• no inconvenience of trial

• ensures conviction

plea negotiation - weaknesses

• lack transparency

• the accused may feel pressured into agreeing

court hierarchy

the ranking of the courts

reasons for court hierarchy

• appeals

• specialisation

appeals

when a dissatisfied party takes a matter to a higher court as a new hearing

grounds of appeal

• question of law

• conviction

• sentence

specialisation

the developed areas of expertise of the courts over time

court hierarchy strengths

• allow appeals

• allow for specialisation

court hierarchy - weaknesses

• makes court system confusing

• no automatic right to appeal

judge/magistrate

• impartial third party

• manage cases

• enforce procedure

roles of jury

• follow direction from judge

• objectively listen to all evidence

• deliberate until verdict is reached

prosecution

presents evidence and arguments to the jury to support the conviction beyond reasonable doubt

defence

presents evidence that opposes a conviction

Legal practitioners

trained lawyers

types of legal practitioners

1. solicitors

2. barristers

solicitors

• manage the case

• provide administrative support

barristers

present the case

role of legal practitioners

• support a case through expertise

• manage pre-trail processes - admissability

• present evidence and arguments to the court

legal practitioners - need

• complexity and procedures are too hard for laypeople to understand

• give valuable advice, navigation and suggestions

• ensure the best cases are presented

legal practitioners - strengths

• experts

• have objedctivity

• can reduce delays

legal practitioners - weaknesses

• not all are equal

• not everyone can afford

costs

• exceedingly high

• creates strong link between socio-economic status and crime

• longer the trial higher the costs

costs - measures that address

• VLA and CLCs

• Committal Proceedings

• plea negotiations

time

• increase stress, anxiety, costs and trauma

time - measures to address

• plea negotiations

• digital resources

cultural differences - difficulties

• lack of understanding

• language barriers

• lack of interpreters

• cultural barriers

• distrust

cultural differences - measures to address

• alternative sentencing options

e.g. Koorie Court

• free interpreters

• information in multiple languages.