Legal Studies AOS 3

Fairness

means that all people can participate in the justice system, and its processes should be impartial and open.

measures that uphold fairness in the justice system

1. Most hearings being publicly accessible.
2. The burden of proof lying with the prosecution.
3. Judges, magistrates, and juries being impartial.

Equality

that all people engaging with the justice system and its processes should be treated in the same way.

How should disparities in treatment be addressed in the justice system?

If the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow all to engage without disparity or disadvantage.

measures that uphold equality

1. Translators.

2. Legal representation for people of low socio-economic background.

3. Alternate arrangements for vulnerable victims.

4. Specialist courts, such as Koori courts.

Access

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

measures that uphold access

1. Use of legal aid.

2. Removing formalities during a hearing.

3. Courts located throughout Victoria.

4. Victims being informed about proceedings.

Role of police

To serve the Victorian community and uphold law to promote a safe and secure orderly society  

Prevention

prevent the crime by patrolling and maintaining social order  

Investigating

detect and investigate crimes

Prosecution

prosecute offenders for the crimes they have committed by charging individuals with a crime and conducting legal proceedings in a court of law

Delegated bodies

are specialized government agencies who, due to their expertise in a particular area, have been given the authority from parliament to make and enforce laws within their area  

WorkSafe

Enforces the Occupational Health and Safety Act 2004 (Vic), ensuring safe workplaces by holding employers accountable for employee health, safety, and welfare.

Role of Work Safe

Investigates workplace safety breaches, gathers evidence, and collaborates with the OPP to prosecute criminal non-compliance with health and safety laws. as well as conducting and preparing for hearings.

Powers the police have when arresting

• If a crime had been committed police have the power to arrest the accused  

• Police can arrest without a warrant if it perseveres public order  

• Use reasonable force  

• Police can enter any area where they have reasonable grounds to believe it has been committed  

 

Powers individuals have when arrested

• Individuals can refuse to attend a police station unless they are under arrest  

• Informed as to reasoning of arrest  

• Right to trial without unreasonable delay  

• Right to remain silent however you must state name and address  

Powers police have in questioning

• Question individuals within a reasonable time  

• Power to determine what involvement if any, they had in offence  

 

Powers individuals have in questioning

• Informed that they do not have to say anything  

• Communicate with a friend or legal practitioner 

• The right to an interpreter  

• Questioning within a reasonable time 

• To stay silent  

• If under 18 A parent guardian or independent person present during questioning  

Powers the court has in legal proceedings

• Power to commence criminal action against an accused to determine guilt  

• Prepare the case speak within witness, obtain evidence negotiate with the accused 

• Evidence is inadmissible  

• Garant to withhold bail  

• Determine and impose an appropriate sanction   

powers individuals have in legal proceedings

• Independant judge or magistrate  

• Innocent until proven guilty  

• Tried without unreasonable delay  

• Have an interpreter  

• Speak and have access to a lawyer 

 

What is the primary role of courts in criminal cases?

To determine a criminal case by managing and hearing proceedings as an impartial referee.

What happens if the accused pleads guilty?

A date is set for a plea hearing where submissions are made about the facts, circumstances, and sentencing.

What are the two types of criminal jurisdiction?

Original jurisdiction (first instance hearing a case) and appellate jurisdiction (hearing on appeal).

What types of offences does the Magistrates Court handle?

Summary offences and indictable offences heard summarily, as well as committal proceedings.

What kind of offences does the County Court hear?

Indictable offences except treason, murder, attempted murder, and certain conspiracies.

What is the composition of a criminal jury?

A jury consists of 12 people randomly selected from society, who must be 18 years or older and able to vote.

What are some reasons a person may be disqualified from jury duty?

Having a conviction for an indictable offence with a sentence of 3 years or more, or being in custody for an alleged offence.

What are the strengths of the jury system?

Jurors are independent, reflect community values, and spread the responsibility of decision-making.

What are weaknesses of the jury system?

Juries do not provide reasons for their decisions, the task can be difficult with complex evidence, and jury trials can result in delays.

When is a jury required in a criminal matter?

When the accused is charged with an indictable offence and the case is heard in the County or Supreme Court

the second role of the courts to Impose a sanction

• If the accused is found gulity or pleads guilty, a date for a plea hearing takes place  

• Submissions are made about the facts of the case, offenders circumstances, consideration in sentencing and the type of sentence  

• Judge or a magistrates hands down the sanction  

 

to be excused form jury duty

if you are unable to act impartial are elderlly, ill or need to take care of somone

to be ineligible for jury duty

individuals who are in a legal profession or are seen to have a legal expertise that prevents them from act impartial compared to someone else of a broader society

first nations people affected by justice system

First Nations people have suffered significant injustices and human rights breached, including violence, death, racism, dispossession of traditional lands and the forced removal of children from their families. 

difficulties First nations people face

cultural differences, lanugage differences, distrust in system

Cultural Differences

Variations in understanding that can result in a lack of understanding of the law and criminal justice system by First Nations people, potentially leading to feelings of intimidation and reluctance to seek help.

What are the negative effects of custody?

Custody (time in remand or youth facility) can lead to stigma, association with offenders, reduces positive intervention, and increases reoffending.

Culturally and Linguistically Diverse People (CALD)

In Victoria, over 35% of people were born overseas, with more than 300 languages spoken in Australia (2021 ABS).

What difficulties do CALD people face in the justice system?

Limited awareness of the Victorian system, language differences impacting communication with legal personnel.

How are difficulties for CALD people addressed?

VLA and community legal centers provide free interpreters and information in different languages; specialist legal centers exist for asylum seekers and refugees.

How prevalent is disability in Victoria?

18.4% have a physical disability, and 3% experience severe mental illness; 50% of adult prisoners have a disability.

What difficulties do people with disabilities face in the justice system?

Physical barriers (lack of accessibility) and negative stigma or prejudice; disability training is important to combat the prejudice

physical Barriers

Lack of accessibility due to physical barriers

How are difficulties for people with disabilities addressed?

Magistrates Court Assessment and Referral Court addresses underlying factors; VLA and community legal centers offer

Purpose of Sanctions: Rehabilitation

Designed to reform an offender to prevent future offenses by addressing underlying causes and changing attitudes.

Rehabilitation Effectiveness

Community correction orders (CCOs) can promote rehabilitation; offender must show remorse for rehabilitation to be relevant in sentencing.

Purpose of Sanction: Punishment

Designed to penalize the offender, showing society and victims that criminal behavior is not tolerated; prevents victims from seeking vengeance.

Punishment Application

Common in severe cases like homicide, grievous harm, or sexual offenses; sanctions beyond deprivation of liberty can also penalize an offender.

Purpose of Sanctions: Deterrence

Aims to discourage the offender and others from committing similar offenses; includes general and specific deterrence.

Deterrence Effectiveness

Community needs to see consequences for general deterrence; specific deterrence is a high priority for repeat offenders.

Purpose of Sanctions: Denunciation

Demonstrates the community's disapproval of the offender's actions in cases like family violence or hate crimes.

Denunciation Reinforcement

Reinforces community belief that the behavior is unacceptable and must be condemned.

Purpose of Sanctions: Protection

Safeguards the community by preventing offenders from committing further offenses, sometimes requiring removal from the community.

CCOs for Community Protection

CCOs can protect the community by keeping offenders busy and restricting access to certain places.

Fines

An amount of money ordered by the court to be paid to the state of Victoria.

Fine Levels

Expressed in levels 2 to 12, with 2 being the highest and 12 the lowest.

Factors Determining Fine Amount: Financial Circumstances

Financial circumstances of the offender.

Factors Determining Fine Amount: Other Orders

Whether other orders have been made in addition to the fine.

Factors Determining

Any loss, destruction, or damage to property resulting from the offense.

CCOs

A community correction order (CCO) is a noncustodial sanction (does not involve a prison sentence). This sanction is served in the community with conditions attached to it. 

imprisonment

Involves being removed from society and having to spend time in prsion, losing, freedom and liberty  

Core conditions of CCOs

• Must not commit another offence punishable by prison.  

•  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 correction officer. • Must not leave Victoria without permission. 

• Must not leave Victoria without permission 

Additional conditions of CCOs

• Curfews 

• Unpaid community work  

• Treatment rehabilitation  

• Place and area of exclusion