unit 3 aos 1 SAC 1- victorian criminal justice system

what is a summary offence

minor crime that is heard in the magistrates court

where are summary offences listed?

Summary Offences Act 1966 (VIC)

what are examples of summary offences?

drink driving, minor assaults, disorderly conduct

what is the final hearing called for summary offences?

hearing

who determines guilt in a summary offence

only a magistrate

what is an indictable offence?

a serious crime that is generally heard in the county and supreme court

where are indictable offences listed?

crimes act 1958 (VIC)

what are examples of indictable offences?

murder, manslaughter, drug trafficking

what is the final hearing called for indictable offences?

trial

who determines guilt in an indictable offence

judge and jury

what are committal proceedings?

pre-trial hearings and processes held in the magistrate’s court for indictable offences

what are committal hearings?

when an accused has been charged with an indictable offence and pleads not guilty which is held at the Magistrates court where the magistrate decides whether there is sufficient evidence to support a conviction at a trial in the county and supreme court

what occurs when the magistrate finds that there is not sufficient evidence in a committal hearing?

the accused is discharged and free

however, if further evidence is found in the future, the accused can be brought before a court again because guilt has not been decided

what is the purpose of committal hearings?

• ensuring that cases with inadequate evidence don’t go to trial

• ensuring a fair trial by making sure the prosecution’s case is disclosed to the accused

• finding out whether the accused plans to plead guilty or not guilty

what are indictable offences heard summarily?

indictable offences that are heard before a magistrate that must be agreed upon by the accused and the court

what is an example of an indictable offence that can be heard summarily?

assault

why would the accused generally choose to have indictable offences heard summarily?

it’s quicker, cheaper and the sentencing is less than if heard as an indictable offence

what is the maximum sentence that can be handed down in the magistrates court?

single offence- 2 years imprisonment

multiple offences- 5 years imprisonment

what qualifies an indictable offence as being able to be heard summarily?

Criminal Procedure Act 2009 (VIC) states that indictable offences that are punishable by less than or equal to 10 years, or a max fine not exceeding 120 penalty units and property offences where the value of property is worth less than $100, 000 can be heard summarily

how can indictable offences and summary offences be distinguished?

• what act it is provided in

• the nature of the crime and how much harm it inflicts

• what the final hearing is called

• whether there is a right to a jury

• what court hears the case

• whether there are committal proceedings

what is the burden of proof?

the responsibility of a party to prove that the accused is guilty

who has the burden of proof in a criminal case?

prosecution

why does the prosecution have the burden of proof in a criminal case?

This is because if the prosecution is accusing a person of committing a crime it is believed that they should establish the facts

when can the burden of proof be reversed/limited?

the accused pleads a defence such as self defence

in the case of committing certain offences like drug offences

what is the standard of proof?

the level of evidence required to establish liability in a criminal/civil case

what is the standard of proof required in a criminal case and what does it mean?

beyond reasonable doubt- means that the case is almost certain to have occurred as no other logical/reasonable conclusion based on the evidence presented can be reached except that the accused is guilty

what is the presumption of innocence?

the right to be presumed innocent until proven guilty

what statute protects the presumption of innocence?

the charter of human rights and responsibilities act 2006 (VIC)

how is the presumption of innocence protected and upheld?

- burden of proof being on the prosecution

- standard of proof being very high

- police officers having to reasonably believe a person has committed a crime before arresting them

- right to apply for bail

- right to legal representation

- right to silence

- previous convictions not being revealed in court until sentencing process

- right to appeal

what right do the accused have?

right to be tried without unreasonable delay, right to silence and right to trial by jury

what factors does the reasonableness of a delay depend on

the complexity and legal issues involved

what is an example of reasonable delays

2020 covid pandemic criminal trial delays

what is an example of unreasonable delays?

gray v dpp (2008)

where is the right to be tried without unreasonable delay protected?

in section 21 (5) of the human rights charter

what occurs in a case with an accused child in regards to reasonable and unreasonable delays

the human rights charter states that the accused must be brought to trial as soon as possible rather than be tried without unreasonable delay because of the impact that a trial can have

what is the right to silence?

right that attracts an immunity from averse inference which might otherwise arise from its exercise

where is the right to silence protected

in section 89 of the evidence act 2008 (VIC) and the jury directions act 2015 (VIC)

examples of where this right is upheld

• When a person is questioned by law enforcement authorities or those acting under the authority of the state

• In the court of law where the accused can choose to remain silent in their own defence in criminal proceedings

• Accused can choose not to call upon a particular witness as part of a trial

• The accused being able to have selective silence where they can choose to answer some questions and not others and cannot be used to infer guilt

what are examples of exceptions to the right to silence?

• The Evidence Act 2008 (VIC) states that a person can’t exercise their right to silence in instances where the failure or refusal to respond to a question, poses an issue in the proceeding

• The Criminal Procedure Act 2009 (VIC) states that if the police reasonably believe that a person has committed or is about to commit a crime or may be able to assist in the investigation of an indictable offence they must provide their name and address

what does the jury directions act 2015 (VIC) state?

when the accused has chosen not to provide evidence, a counsel acting on their behalf may request the judge give a direction about the right to silence to the jury

what does a direction about the right to silence state

• failure of the defence to provide evidence or a witness cannot be considered an admission of the accused

• failure of the defence to provide a witness may not be used as evidence against the accused and doesn’t strengthen the prosecution case

• the accused is not required to call any particular witnesses and that the jury should not speculate about evidence not given

what does the jury directions act prevent any party from doing?

making statements that suggest or can be inferred from that the inability to give evidence is an admission of the accused’s guilt

why is the jury system important?

provides opportunity for community participation in the legal process and for the law to be applied according to community standards

where is the right to a trial by jury protected?

section 80 of the commonwealth constitution

what are commonwealth offence and examples

commonwealth indictable offences are serious offences set out by the constitution such as organ trafficking, terrorism and importation of illegal substances

how many jury members are allowed

jury is made up of 12 jurors generally but can be made to be up to 15 depending on factors such as the length and nature of the crime

the 3 extra jurors are seen as replacements in case one gets sick ect which helps avoid disruptions

what are limitations to the right to a trial by jury?

only commonwealth indictable offences are entitled to a jury

this doesn’t protect the majority of indictable offences which are under state law

how does the victims charter act 2006 (VIC) protect the rights of victims?

sets principles such as respectful treatment of victims however the breach of these principles doesn’t entitle the victim to take civil action to enforce them

what is a victim?

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

what are examples of victims?

• A person who has suffered injury as the result of a criminal offence (primary victim)

• A family member of a person who has died due to a criminal offence

• A family member of a person who is under the age of 18 and/or are incapable of managing their affairs due a to mental impairment which means that the person has suffered injury

• A child under the age of 16 who has been groomed for sexual conduct and their family

• Victim that gives evidence in support of the prosecutions case against the accused

are victims considered a party in a criminal case?

no

what specific victims have the right to give evidence via alternative arrangements?

witnesses that give evidence in criminal proceedings in relation to sexual offences, family violence, obscene/indecent/threatening language or behaviour in public, sexual exposure in public

how is the right to give evidence using alternative arrangements protected?

the criminal procedure act 2009 (VIC)

what are the rights of victims?

right to give evidence using alternative arrangements, be informed of proceedings and to be informed of the likely release date of offender

what are possible alternative arrangements?

• evidence given by CCTV outside of the courtroom

• screens to remove the accused from the line of vision of the witness

• support person being allowed to sit next to the witness

• certain persons to only be allowed in the courtroom while the victim is giving evidence

• legal practitioners not dressed in formal robes

• legal practitioners being seated when asking the witness question

when must the court direct the use of certain alternative arrangements and what would they be?

for complainants in sexual offences/family violence charges for the use of CCTV unless the prosecution applied for the complainant to give evidence in the courtroom

what is a complainant?

a person who makes a formal legal claim that another person has committed a criminal offence against them

what is the purpose of alternative arrangements?

reduce trauma, distress and intimidation that a victim could face

how is the right to be informed of proceedings protected?

the victims charter

what does the victims charter state overall in terms of the right to be informed of proceedings

• that a victim of a crime has the right to be kept informed with regards to criminal proceedings pertaining to them

• the victim must be provided with clear, timely and consistent information services

• the victim must be provided with information about possible compensation entitlements and legal assistance available to those persons impacted by crime

who provides details of the criminal proceeding?

the Victorian police, director of public prosecutions and victims of crime commissioner

when can information about proceedings not be given?

if it puts an investigation at risk or the victim chooses not to receive that information

what information must be provided to the victim (according to victim charter)

• details of the offence, charged against the person

• if no offence is charge, reasons why

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

• the outcome of the case

• the sentence

• details of an appeal (if applicable)

what does the correction act 1986 (VIC) state in regards to the right to be informed of proceedings?

that a victim of a crime can request information such as:

• length of offender’s sentence

• right to be told if the offender escapes from prison

• when they will be released

• of when parole will be granted

• right to make a submission if the imprisoned offender may be released on parole

how is the right to be informed of the likely release date of the accused upheld?

the victims register

what does the victims register do?

allows victims to receive information about an offender who has been imprisoned including being notified at least 14 days prior to the release of an offender or parole

do victims have to apply to be on the victims register?

yes

who can access the victims register?

victims of a criminal act

what are examples of a criminal act?

• sexual offence

• aggravated burglary

• kidnapping, stalking

• child stealing

• assault

• culpable driving causing death

• dangerous driving causing death/serious injury

• failing to stop after a motor vehicle accident causing death or serious injury

what are the principles of justice?

fairness, equality and access

what is fairness?

treating others impartially without fear or favours

what are the aspects of fairness?

impartial processes, open processes and participation

what is impartial processes?

no belief that the person hearing/deciding a case is biased (apprehended bias)

what are open processes?

ensures institutions and people who administer justice can be scrutinized by the public and held accountable for their actions, decisions and practises

what are examples of open processes?

court hearing being public, court judgement made available to the public, allowing the community, media and victims to attend court hearings

how can open processes be limited?

some court hearings are closed to the public/details of a case may not be available

what is participation?

the ability for people to participate in the criminal justice system

what are examples of participation

use of lawyer, use of an interpreter, tried without delays, use of victim impact statements, right to remain silent

what is access?

ensures all people are able to engage with the criminal justice system and its processes on an informed basis

what are the aspects of access?

engagement and informed basis

what is engagement?

the means and ability to be able to use and participate in the system

what are examples of engagement?

physical access, technological access, financial access, no delays

what is informed basis?

everyone should be able to understand their legal rights and processes involved in their case and obtain/be provided with enough information to make reasoned sensible decisions

what are examples of informed basis?

through education, information, legal support systems and legal representation

what is equality?

all people are treated the same in the criminal justice system so there is no disadvantage/inconsistency

what are the aspects of equality?

same and different treatment

what is same treatment

people must be treated in the same way and given the same levels of support regardless of race, age or gender (formal equity)

what is an example of same treatment?

everyone who contacted a community legal centre is entitled to the same information/assistance

what is different treatment?

if treating people the same could cause a disparity or a disadvantage, measures need to be put in place to allow people to participate in the justice system without disparity or disadvantage (substantive equality)

what are examples of different treatment?

interpreters, changes to court processes, different form of oath/affirmation, breaks and adjournments, changes for the purpose of culture differences