Legal Studies UNIT 3 AOS1

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92 Terms

1

complainant

a person against whom an offence is alleged to have been committed (a person who has complained to the police)

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access

one of the principles of justice access means that all people should be able to understand their legal rights and pursue their case

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accused

a person charged with a criminal offence

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aggravating factors

circumstances considered in sentencing that can increase the seriousness of the offence or the offender's culpability (i.e. responsibility) resulting in a more severe sentence Examples:

  • Violence or use of weapons

  • Vulnerabilities of the victim

  • The nature and gravity of the offence

  • A breach of trust (i.e. parent abusing a child).

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bail

the release of an accused person from custody on condition that they will attend a court hearing to answer the charges

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community correction order (CCO)

a non-custodial sanction (i.e. one that doesn't involve a prison sentence) that the offender serves in the community, with conditions attached to the order \n Effective for protection, specific deterrence, punishment and especially rehabilitation \n Not effective for general deterrence or denunciation

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community legal centre (CLC)

an independent organisation that provides free legal services to people who are unable to pay for those services. Some are generalist CLCs and some are specialist CLCs

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conviction

a criminal offence that has been proved. Prior convictions are previous criminal offences for which the person has been found guilty

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Costs factors in criminal justice system

High cost of legal rep reduces ability of the criminal justice system to achieve fairness, equality and access \n Legal aid can assist, however, it is limited \n Courts can provide assistance to self-represented parties

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Cultural differences

Indigenous Australians face difficulties accessing the criminal justice system due to:

  • Language barriers

  • Body language

  • Shyness and submissiveness This can significantly reduce the ability of the criminal justice system to achieve fairness, equality and access for Indigenous Australians.

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defendant

(in a civil case) a party who is alleged to have breached a civil law and who is being sued by a plaintiff

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denunciation

one purpose of a sanction a process by which a court can demonstrate the community's disapproval of the offender's actions, generally with a longer prison sentence or larger fine

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deterrence

one purpose of a sanction a process by which the court can discourage the offender and others in the community from committing similar offences

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equality

one of the principles of justice equality means people should be equal before the law and have the same opportunity to present their case as anyone else, without advantage or disadvantage

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fairness

one of the principles of justice fairness means having fair processes and a fair hearing For example:

  • the parties in a legal case should have an opportunity to know the facts of the case and have the opportunity to present their side of events and

  • the pre-hearing and hearing (or trial) processes should be fair and impartial

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fine

a sanction that requires the offender to pay an amount of money to the state

  • Strong for punishment, deterrence and denunciation (if large enough)

  • Not effective for protection or rehabilitation

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guilty plea

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

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imprisonment

a sanction that involves the removal of the offender from society for a stated period of time and placing them in prison. Results in a loss of liberty.

  • Effective for protection, punishment, deterrence, and denunciation

  • Not effective for rehabilitation (due to influence of other prisoners)

  • Education and treatment programs do aim to rehabilitate

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indictable offence

a serious offence generally heard before a judge and a jury in the County Court or Supreme Court of Victoria

eg.

  • Homicide offences (murder, manslaughter)

  • Culpable driving

  • Drug trafficking

  • Armed robbery

  • Serious assaults

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indictable offence heard and determined summarily

a serious offence which can be heard and determined as a summary offence if the court and the accused agree

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Koori Court

a division of the Magistrates' Court, Children's Court and County Court that (in certain circumstances) operates as a sentencing court for Aboriginal people

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legal aid

legal advice, education or information about the law and the provision of legal services (including legal assistance and representation)

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mitigating factors

"circumstances considered in sentencing that reduce the seriousness of the offence or the offender's culpability and lead to a less severe sentence Examples:

  • offender was provoked by the victim

  • offender showed remorse

  • offender has no record of previous convictions

  • Early guilty plea

  • Offender was young or had mental impairment

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presumption of innocence

the right of a person accused of a crime to be presumed not guilty unless proven otherwise upheld by:

  • burden on prosecution

  • high standard of proof (beyond reasonable doubt)

  • bail.

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prosecutor

the Crown in its role of bringing a criminal case to court (also called 'the prosecution')

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protection

one purpose of a sanction a strategy designed to safeguard the community from an offender in order to prevent them from committing further offence (e.g. by imprisoning them)

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punishment

one purpose of a sanction a strategy designed to penalise (i.e. punish) the offender and show society and the victim that criminal behaviour will not be tolerated

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purpose of committal hearings

"decide whether there is sufficient evidence to support a conviction for the offence charged \n allow an early guilty plea \n allow the accused to see the evidence against them \n determine whether the case is suitable to be heard summarily

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purpose of plea negotiations

pre-trial discussions that take place between the prosecution and the accused, aimed at resolving the case by agreeing on an outcome to the criminal charges laid Purpose is to:

  • ensures a guilty plea

  • likely lesser sentence for the offender

  • saves time and cost of trial

  • however, can be seen as soft

  • people may plead guilty for strategic reasons, even if they are innocent

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REASONS FOR A COURT HIERARCHY \n appeals

If dissatisfied with a decision, can appeal to a higher court

  • Provides fairness

  • Allows for mistakes to be corrected Not possible without court hierarchy.

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REASONS FOR A COURT HIERARCHY \n specialisation

Courts develop expertise in their jurisdiction. \n Lower courts can hear minor cases efficiently. \n Higher courts are expert in hearing more complex cases \n Specialist courts such as Children's Court and Coroner's Court deal with specific areas of law.

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recidivism

re-offending returning to crime after already having been convicted and sentenced

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rehabilitation

one purpose of a sanction a strategy designed to reform an offender in order to prevent them from committing offences in the future

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responsibilities of legal practitioners in a criminal trial

Undertake the role of preparing and conducting a case on behalf of the parties They are responsible for:

  • Preparing the case

  • Complying with their duty to the court

  • Presenting the case in the best light.

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responsibilities of the judge in a criminal trial

Role is to be an independent, unbiased umpire who:

  • Manages the trial

  • Decides on admissibility of evidence

  • Attends to jury matters

  • Gives directions to the jury and sum up the case

  • Hands down a sentence

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responsibilities of the jury in a criminal trial

Trial by peers Independent decision-maker Responsible for:

  • Listening to all the evidence

  • Applying the points of law as explained by the judge

  • Putting aside prejudices or preconceived ideas

  • Taking part in deliberations

  • Making a decision on the facts.

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responsibilities of the parties in a criminal trial

Each party has control over their case They are responsible for:

  • Giving an opening address

  • Assisting the judge in jury matters

  • Presenting the party's case

  • Giving a closing address

  • Making submissions about sentencing.

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right to a fair hearing

an accused is entitled to have the charge decided by a competent, independent, and impartial court after a fair and public hearing.

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right to a trial by jury

an accused has the right to trial by jury. This right is protected by:

  • the Australian Constitution (limited to Cth. indictable offences -there are very few Cth. indictable offences) and

  • statute law in Victoria: the Criminal Procedure Act requires a jury for indictable offences. There is no right to a jury for summary offences.

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right to be informed about the proceedings

Victims are entitled to certain information about the proceeding and about the criminal justice system, including: support services, possible compensation entitlements, and the legal assistance available. Police must keep victims informed about the progress of an investigation. The prosecution must inform victims of:

  • the details of the offence

  • if no offence is charged, the reason why

  • how the victim can find out date, time and place of the hearing

  • the outcome of the criminal proceeding, including any sentence and

  • details of any appeal. Victims must be told they can attend any court hearings.

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right to be informed of the likely release date

A victim of a criminal act of violence may apply to be included on the Victims Register. They will then be informed of the likely date of release for the offender. They must be informed at least 14 days before release.

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right to be tried without unreasonable delay

an accused is entitled to have their charges heard in a timely manner. Delays should only occur if they are considered reasonable. Everyone is entitled to this right 'without discrimination', regardless of things such as prior history, or personal attributes.

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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, they have the right to give evidence as a vulnerable witness. \n Protections available include giving evidence via CCTV or to not have the accused in the same room as them.

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sanction

a penalty (e.g. a fine or prison sentence) imposed by a court on a person guilty of a criminal offence

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sentence indication

a statement made by a judge to an accused about the sentence they could face if they plead guilty to an offence

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summary offence

a minor offence generally heard in the Magistrates' Court

  • Driving while disqualified

  • Parking fines

  • Public drunkenness

  • Minor property damage

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the standard of proof in criminal cases

beyond reasonable doubt. This requires the prosecution to prove there is no reasonable doubt that the accused committed the offence

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Time factors

Delays are a big issue in our legal system, due to:

  • Limited court resources

  • Increasing number of criminal cases

  • Unnecessary committal hearings

  • If accused changes lawyers

Delays lead to:

  • Increased stress, costs and financial hardship

  • Reduced access

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victim

a person who has suffered directly or indirectly as a result of a crime

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victim impact statement

a statement filed with the court by a victim, and considered by the court when sentencing. It contains particulars of any injury, loss or damage suffered by the victim as a result of the offence

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Victims Register

a register (i.e. database) maintained by the state of Victoria set up to provide the victims of violent crimes with relevant information about adult prisoners while they are in prison (e.g. the prisoner's earliest possible release date)

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Victoria Legal Aid (VLA)

a government agency that provides free legal advice to the community and lowcost or no-cost legal representation to people who can't afford a lawyer

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appellate jurisdiction

the power of a court to hear a case on appeal;

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Vulnerable witness

A person considered to be impressionable or at risk such as children, victims of sexual violence and those with cognitive impairments. Special arrangements may be made for them to testify

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EVALUATE COMMITTAL HEARINGS Allows accused to challenge evidence:

The accused is able to test the evidence against them This includes questioning prosecution witnesses May lead parties to agree on facts or issues, saving time at trial However:

  • Oral evidence can add to delays

  • Requires legal rep, which is expensive

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EVALUATE COMMITTAL HEARINGS \n Informs accused of evidence against them

Allows accused to be informed of the case against them Helps decide whether to plead guilty or not guilty Helps them to prepare their case Places them on equal footing with the prosecution However:

  • Committals are very complicated

  • Require legal rep, which is expensive

  • This can lead to an unfair outcome if the accused is unrepresented or has inferior legal rep.

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EVALUATE COMMITTAL HEARINGS \n Onus on prosecution:

The prosecution must establish that there is enough evi- dence to go to trial \n If they can't do this the accused is discharged \n Ensures the accused doesn't have to face trial if there is insufficient evidence

This supports the presumption of innocence However

  • Committals increase stress and trauma for the accused, the victim and their families

  • This can mean victims don't wish to give evidence, reducing access and increas- ing the chance of an unfair outcome.

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EVALUATE COMMITTAL HEARINGS \n Save time and resources"

By filtering out cases with insufficient evidence, committal hearings: save time of an unnecessary trial, and reduce the burden on the courts However:

  • Committals can add to the delay of getting a case to trial

  • Can reduce access and increase chance of an unfair outcome

  • Some have called for committals to be abolished.

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EVALUATE PLEA NEGOTIATIONS \n Reduced sentence:

There are advantages for the accused who may receive a reduced sentence because of an early guilty plea However:

  • An innocent person may feel pressured into accepting a deal

  • Rather than taking the chance of being found guilty at trial of a more serious offence and receiving a longer sentence

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EVALUATE PLEA NEGOTIATIONS \n Reduces delays and costs:

By ensuring an early guilty plea:

  • Helps with the prompt determination of criminal cases

  • Saves costs of a full trial or hearing

  • Increases public confidence in the legal system However:

  • The community and victims may feel the negotiations have resulted in the accused getting a lenient sentence.

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EVALUATE PLEA NEGOTIATIONS \n Reduces stress and trauma":

Victims and witnesses are saved the trauma, inconvenience and distress of the trial process A trial means they may have to relive the crime and hear evidence that may be distressing However:

  • May be seen as the prosecutor avoiding the need to prove the case beyond reasonable doubt

  • This undermines the presumption of innocence

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EVALUATE SENTENCE INDICATIONS \n Early determination of the case":

Can result in the early determination of the case

  • This results in prompt justice rather than delayed justice

  • Saves money and court resources of trial

  • Reduces trauma, stress, inconvenience of victims + witnesses However:

  • It denies the victim their 'day in court'

  • They may want to see justice occur with a guilty verdict

  • However, many victims are traumatised by the trial experience

  • Sentence indications can avert that trauma.

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EVALUATE SENTENCE INDICATIONS \n Greater certainty:

Gives greater certainty about the sentence

  • Avoids risk of finding out at the end what the sentence will be

  • Indication is given by an experienced and impartial judge

  • Accused is not bound to accept the indication and plead guilty However:

  • For indictable offences, court only needs to indicate if it would impose an immediate term of imprisonment (not the length)

  • This provides less certainty about the type or length of sentence

  • Indication may be given before all the facts have been proved

  • May disadvantage an offender, as it commits them to a sentence that might be less after a trial.

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EVALUATE SENTENCE INDICATIONS \n Lesser sentence:

If the accused pleads guilty at the earliest possible time:

  • summary - can't receive a greater sentence than was indicated

  • indictable - can't receive a term of imprisonment if the judge indicated that there would be no term of imprisonment However:

  • The judge is not obliged to grant the accused's request

  • For indictable offences, the prosecutor must consent

  • This limits the availability of sentence indications

  • Means an accused who may have been willing to plead guilty if given a sentence indication is unable to.

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EVALUATE SENTENCE INDICATIONS \n Transparency / Lack of transparency

A sentence indication can be given in open court

  • This means there is transparency in the indication

  • As opposed to the secrecy of plea negotiations However:

  • The court can close a proceeding when an indication is given

  • This means there will be a lack of transparency.

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imprisonment

a sanction that involves the removal of the offender from society for a stated period of time and placing them in prison. Results in a loss of liberty.

  • Effective for protection, punishment, deterrence, and denunciation

  • Not effective for rehabilitation (due to influence of other prisoners) - Education and treatment programs do aim to rehabilitate

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indictable offence heard and determined summarily:

a serious offence which can be heard and determined as a summary offence if the court and the accused agree

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purpose of plea negotiations

pre-trial discussions that take place between the prosecution and the accused, aimed at resolving the case by agreeing on an outcome to the criminal charges laid Purpose is to:

  • ensures a guilty plea

  • likely lesser sentence for the offender

  • saves time and cost of trial

  • however, can be seen as soft

  • people may plead guilty for strategic reasons, even if they are innocent

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right to be informed about the proceedings:

Victims are entitled to certain information about the proceeding and about the criminal justice system, including: support services, possible compensation entitlements, and the legal assistance available. Police must keep victims informed about the progress of an investigation. The prosecution must inform victims of:

  • the details of the offence

  • if no offence is charged, the reason why

  • how the victim can find out date, time and place of the hearing

  • the outcome of the criminal proceeding, including any sentence and - details of any appeal. Victims must be told they can attend any court hearings.

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right to be informed of the likely release date:

A victim of a criminal act of violence may apply to be included on the Victims Register. They will then be informed of the likely date of release for the offender. They must be informed at least 14 days before release.

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right to be tried without unreasonable delay

an accused is entitled to have their charges heard in a timely manner. Delays should only occur if they are considered reasonable. Everyone is entitled to this right 'without discrimination', regardless of things such as prior history, or personal attributes.

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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, they have the right to give evidence as a vulnerable witness. \n Protections available include giving evidence via CCTV or to not have the accused in the same room as them.

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How does this right uphold the principles of justice?

  • Ensure fairness so that accused persons do not suffer prolonged anxiety, stress and stigma of having to wait.

  • Inadvertently ensures access for other accused persons, as this will reduce the backlog of cases in the court system.

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CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT 2006 - SECT 25 (s. 2c)

(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees - (c) to be tried without unreasonable delay.

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Elements of a fair hearing

  • The right to be heard by ‘competent, independent and impartial’ tribunal

  • The right to a public hearing

  • The right to counsel

  • The right to interpretation

  • The right not to be tried or punished more than once (‘double jeopardy’)

  • The right to be heard within a reasonable time

  • The right to a jury of an accused person’s peers

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What might impede a fair trial?

  • Contempt of court

  • Witness intimidation

  • Non-disclosure of evidence

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CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT 2006 - SECT 24

  1. A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

  2. Despite subsection (1), a court or tribunal may exclude members of media organisations or other persons or the general public from all or part of a hearing if permitted to do so by a law other than this Charter.

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Juries in Victoria

  • The law regulating jury trials in Victoria is the Juries Act 2000 (Vic) (Juries Act). The Juries Act sets out who is eligible for jury duty how a jury is to be selected, empanelled, and how a jury is to operate.

  • In a criminal trial the accused may peremptorily challenge six prospective jurors and the prosecution may stand aside six prospective jurors.

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Jury composition to uphold the principles of justice

There are two key principles that underpin jury composition: representativeness and impartiality.

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Representativeness

  • means that any one jury should be *an accurate reflection of the composition of [Victorian] society, in terms of ethnicity, culture, age, gender, occupation, socio-economic status (etc.) (*definition used by the Victorian Parliament Law Reform Committee in its 1996–97 review of jury service in Victoria).

  • Juries should be selected at random from a jury pool of citizens who have met the eligibility and qualification criteria

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Impartiality

means that jurors should not possess biases or preconceived notions that would hinder their ability to judge the evidence in a case fairly. This is achieved through the random selection process as well as the ability of a court to excuse a person for a person connection to the accused, the victim or witnesses

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Recent reforms

Recent reforms’ refers to initiatives through which the criminal justice system may be improved which have been implemented.

Recent = last 4 years

  • Describe reform AND impact on fairness, access and equality

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No. 1: Abolishing de novo appeals in the County Court (2018)

Before reform: Offender found guilty in Magistrates’ Court appeals to the County Court, the County Court conducted the entire trial again – all victims, witnesses, etc. gave evidence again.

Appeal = new hearing in the County Court (a ‘de novo’ appeal). New process: appeals determined on:

– Transcripts of evidence presented in Magistrates’ Court \n – The magistrate’s reasons for the decision/sentence imposed – Legal arguments presented in the County Court

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No. 1: Abolishing de novo appeals in the County Court (2018) - Fairness (achieved)

Archived: Prevents witnesses and victims needing to give evidence in court multiple times = ↓ stress and anxiety = fair.

Without needing to hear all evidence anew, County Court should resolve appeals more quickly, ↓ delays for offenders = fair.

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No. 1: Abolishing de novo appeals in the County Court (2018) - Access (achieved)

Archived: Ability to appeal the sentence/guilty verdict is maintained by this reform; access to a review of a magistrate’s decision is not ↓

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No. 1: Abolishing de novo appeals in the County Court (2018) - Equality (achieved)

Archived: All offenders retain right to appeal to County Court against guilty verdict and/or sentence; process changes but equal access to appeals does not.

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No. 1: Abolishing de novo appeals in the County Court (2018) (Not achieved)_ Fairness

Not achieved: Only 2% of criminal matters in Magistrates’ Court appealed to County Court, this ↓ delays for a very small % cases (on appeal) and reduces only slightly delays for other matters in County Court.

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No. 1: Abolishing de novo appeals in the County Court (2018)(Not achieved) _ Access

Not achieved: Presenting legal grounds for appeal is complex, requiring legal representation to ensure appellant’s case presented in best light; reform does not make legal representation needed for a well-presented appeal more accessible.

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No. 1: Abolishing de novo appeals in the County Court (2018) (Not achieved) _ Equality

Not achieved: Only a very small % of cases appealed from the Magistrates’ Court to the County Court (approximately 2%). This is also a small proportion of the County Court’s workload.

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Recommended reforms tip:

  • Recommended = proposed by legal experts, law reform bodies, etc.

  • NOT something you’ve invented yourself!

  • Describe reform AND impact on fairness, access and equality

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Recommended reforms

Recommended reforms’ refers to initiatives through which the criminal justice system may be improved which have not yet taken place

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Recommended reforms

No. 1: Abolish peremptory challenges/prosecution stand-asides in the process of empanelling a jury.

Currently an accused person can challenge (and the prosecution can stand-aside) a small number of prospective jurors during the empanelment process. The parties to a criminal case:

  • Know very little about each potential juror

  • Do not question jurors prior to their empanelment; and

  • Do not need to give reasons for such a challenge/stand aside.

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