Unit 3/4 Legal Exam

fairness

means all people can participate in the justice system and it’s processes should be impartial and open

fairness ensures that

• innocent people are not found guilty of a crime they did not commit

• public confidence is maintained in our criminal justice system through features like open and public hearings

does not mean everyone accused of a similar crime with have the same type of hearing or recieve the same sentence

elements of fairness

• impartial processes

• open processes

• participation

Impartial processes

means people should not show bias towards or against either party and the case must be decided on based on facts and law, not prejudices extends to ensure there is no apprehended bias

Open Processes

helps to ensure the institutions and people who administer justice can be scrutinised by the public and held accountable for their actions, decions, and practices

enables people to be informed about court operations and ensures justice is ‘seen to be done’

when open processes cannot be upheld

in sensitive case matters, or while some witnesses are giving evidence, the court may need to be closed to the public or media, and some details may need to be hidden from the public

key characteristics of participation

• oppourtunity to know the case and evidence put against them

• oppourtunity to prepare a defence with adequate time and facilities

• oppourtunity to examine prosecution’s witnesses

• use of a lawyer

• use of an interpreter

• tried without unreasonable delay

characteristics of participation for victims

• allowing victims to give evidence using alternative arrangements

• use of victim impact statements

• providing an oppourtunity to give their views

secondary features of fairness

• right to not tesitfy against oneself (right to silence)

• the presumption of innocence

equality

all people engaging with the justice system and its processes should be treated in the same way, but if the same treatment causes disparity or disadvantage then adequate measures sould be taken to ensure there is no disparity or disadvantage

key features of equality

• formal equality

• substantive equality

Protection of equality by the Human Rights Charter

• everyone is equal before the law

• everyone is entitled to equal protection of the law without discrimination

• everyone has the right to equal and effective protection without discrimination

formal equality

same treatment

there are no changes to the way cases are run, everyone is given the same oppourtunities and the same level of support regardless of individual circumstances

substantive equality

different treatment

measures are taken to ensure everyone can enagage without disparity or disadvantage

examples of measures taken to uphold equality

• interpreters

• providing information in a different way

• changes to court proceses

• different form of oath or affirmation

• changes for cultural differences

• breaks and adjournments

access

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

key features of access

• engagement

• informed basis

ways people can engage with the criminal justice system

• physical access (physically access the courts, services, or legal representation)

• technological access (can access through virtual or online programs)

• financial access (should not be preventing from defending the case becuase they don’t have the financial means to)

• no delays

to engage on an informed basis

• people should be able to understand their legal rights and the processes involved with the case

• obtain, or be provided with, enough information to make reasoned and sensible decisions (i.e. about pleas)

ways to help people become more informed

• education

• information

• legal and support services

• legal representation

duty lawyer

a VLA lawyer who is at court (on duty, on a particular day) to help people who come to court for a hearing

income test

the test used by VLA to determine whether a duty lawyer can represent an accused

test is satisified when an accused can show they limited income- can be a centrelink card, or pension concession card

limited income

primary source of income is social welfare provided by the government

means test

the test applied by VLA to determine whether an applicant qualifies for legal assistance or representation in court (beyond duty lawyer’s services)

takes an accused’s income, assets, and expenses into account

role of VLA

provides free legal information to the community, and legal advice and legal representation for people who cannot afford a lawyer

objectives of VLA

• to provide legal aid in the most effective, economic, and efficent manner

• to manage its resources to make legal aid avaliable at a reasonable cost and on an equitable basis

• to provide the community with improved access to justice and legal remedies

• to pursure innovative means of providing legal aid to minimise the need for individual legal services in the community

• to ensure the coordination of the provision of legal aid and legal assistance information

types of legal aid offered by VLA to accused and victims

• free legal information

• free legal advice

• duty lawyer services

• grants of legal assistance

VLA Free Legal Information

• VLA’s website has free resources and information about criminal cases and other legal material

• resources can also be accessed by phone

• avaliable to everyone

VLA Free Legal Advice

• Advice is given in person, through a video conference, or over the phone

• can be through duty lawyers

• not avaliable for indictable offences or comittal proceedings

VLA Duty Lawyer Services

• only avaliable in Magistrate’s Court and Children’s Court

• prioritses people in custody and First nations people

• anyone can speak to a duty lawyer but only people who pass the income test can access advice

• not avaliable for indictable trials

VLA Grants of Legal Assistance

• grant legal assistance to people who cannot afford a private lawyer

• avaliable for people who pass the means test and meet strict VLA guidelines

The “Missing Middle”

people who earn too much to qualify for legal aid but not enough to pay for their own lawyer

Strengths of VL A

• Free legal information is avaliable on their website to everyone- includes information about court processes, rights, and basic legal principles

• free legal advice and assistance through duty lawyers and grants of legal assistance given to eligible people in the most need i.e. First Nations and people in custody

• Information provided in 30 different lagnauges- staff can speak many lagnauge and can organise interpreters

• Uses online tools to provide legal information and legal advice to access people in rural and remote areas

Weaknesses of VLA

• free legal information avaliable on the website may not be enough for some people

• does not have unlimited resources must apply criteria to ensure funding reaches those who need it the most

• Ability of VLA to meet its demand depends on continued funding - increase of demand means fewer people are eligible for legal aid

• extent to which VLA is able to help people may depend on whether accused people and victims of crime are aware of it existence or have the means to access free information

generalist CLC

community legal centre that provides a broad range of legal services to people in a particular georgraphical area of Victoria

specialist CLC

community legal centre that focuses on a particular group of people or area of law (e.g. young people, asylum seekers, domestic violence)

discrimination

unfavourable treatent of a person based on a certain attribute

role of CLCs

• provide free legal services, including advice, information and representation to people who may not be able to access legal services in any other way

• provide legal education to the community

• advocate for changes to the justice system

types of assistance for accused and victims of crime

• basic legal information

• initial legal advice

• legal casework

CLC basic legal information

can provide basic legal information online or in physical resources to accused people and victims of crime

CLC initial legal advice

• can provide legal advice and legal information on preliminary matters

• can assist with writing letters or completing forms

CLC legal casework

• can provide representation in criminal matters that require ongoing legal assistance

• does not apply for indictable offences

Strengths of CLCs

• free legal information avaliable on CLC website

• some legal information is provided in different languages- some also offer free interpreter services

• provide information to help educate the community about processes and their rights

Weaknesses of CLCs

• insufficent funding to be able to help everyone needs legal assistance ‘service gap’

• many CLCs do not assist people charged with an indictable offence, many are limited to assisting people charged with a summary offence or victims of crime

• CLCs may not have enough staff or volunteers to meet the need of accused people and victims of crime - may result in people being turned away or given less time for people with complex legal issues

plea negotiations

discussions between the prosecution and the accused, aimed at resolving the case by agreeing on an outcome to the criminal charges laid

acquittal

a formal judgement by a court that a defendent is not guilty of a crime, can be complete acquittal (all charges) and a partial (some charges)

guilty plea

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

self-represented party

a person before a court or tribunal who has not engaged a lawyer or other professional

potential outcomes from a plea negotiation

• the accused pleads guilty to fewer charges, with the remaining charges not proceeding

• the accused pleads guilty to a charge, but an agreement is reached about the facts on which the plea is based

• the accused pleads guilty to a lesser charge

Purposes of Plea Negotations

• to ensure certainty of the outcome of a criminal case

• to save the court, and prosecution’s costs, time, and resources by avoiding the need for a trial or hearing

• to achieve a prompt resolution to a criminal case without victims eduring the stress, trauma and inconvenience of a criminal trial

Factors that are considered when determining whether plea negotiation are appropriate for a particular case

• whether the accused is willing to cooperate in the investigation

• the strength of the prosecution’s case, including the evidence the prosecution has and the strength of any defences

• whether the accused is ready and willing to plead guilty

• whether the accused is represented

• whether the witnesses are reluctant or unable to give evidence

• the possible adverse consequences of a full criminal trial

• the time and cost associated with a trial

• the views/values of the victim

Strengths of plea negotiations

• help with prompt determination of criminal cases because they avoid a full hearing or trial

• victims, witnesses and their families and the accused’s family are saved the trauma, inconvenience and distress of the trial process

• proseuctor will consult with victims and may take their views into consideration when deciding whether to negotiate with an accused

• provide substantial benefits to the communtiy by saving the cost of a ful trial

• help to make sure there is certainty of outcome for the parties - going to trail or hearings risks the possibility of an acquittal

Weaknesses of plea negotiations

• do not need to be disclosed and be held privately - lack of transperency may make some people question the agreement or the reason why the prosecution decided to negotiate with the accused

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

• victims do not have a ‘final say’ on whether the prosecutor negotiates with the accused

• self-represented party may feel pressured into accepting a deal even if the evidence is not strong

• may be failure of one or both parties to enagage early on in a case to try to resolve the charges - can result in costs and resources being taken by a case that could have been resolved much earlier

jurisdiction

the lawful authority of a court, tribunal or other dispute resolution body to decide legal cases

original jurisiction

the power of a court to hear a case for the first time

appellate jurisdiction

the power of a court to hear a case on appeal

committal proceeding

the pre-trial hearings and processes held in the Magistrate’s Court for indictable offences

appeal

an application to have a higher court review a ruling

appellant

a person who appeals against a decision

respondent

the party against whom an appeal is made

reasons for court heirarchy

• specialisation

• appeals

specialisation in court hierarchy

development of courts to have their own areas of expertise and specialisation

grounds for appeal in a criminal case

• appealing on a question of law

• appealing a conviction

• appealing the severity or lenienct of a sanction

Magistrate’s Court Jurisdictions

Original Jurisdiction:

• all summary offences and include offences heard summarily

• committal proceedings, bail applications and warrant applications

Appellate Jurisdiction

• no appellate jurisdiction

County Court Jurisdiction

Original Jurisdiction:

• indictable offences except murder, attempted murder, certain conspiracies, and corporate offences

Appellate Jurisdiction

• from Magistrates’ Court on conviction or sentence

Supreme Court (Trial Division) Jurisdiction

Original Jurisdiction:

• most serious indictable offences, including murder, attempted murder, certain conspiracies, corporate offences

Appellate Jurisdiction

• from Magistrates’ Court on points of law

Supreme Court (Court of Appeal) Jurisdiction

Original Jurisdiction:

• no original jurisdiction

Appellate Jurisdiction

• from the County Court or the Supreme Court (trial division)

• From the Magistrates’ Court where the Cheif Magistrate decided the case

Strengths of Court Hierarchy

• allows certain courts to specialse in different types of criminal matters- allows more efficent processes or resources based on the cases they hear

• allows appeals to be made by both parties if there is an error in the original decision

Weaknesses of Court Hierarchy

• having various courts can be confusing for people who don’t understand the criminal justice system - particularly for people charged with indictable offence where the committal proceedings are in the Magistrates’ Court but the trial would be in the County or Supreme

• does no allow for an automatic right to appeal in most instances; offenders need to establish grounds for appeal; can restrict the ability of people to access the appeal hierarchy, especially if self-represented

apprehended bias

a situation where a fair-minded observer has reason to believe that the person deciding a case might not being an impartial mind

evidence

information, documents, and other material used to prove facts in a case

hearsay evidence

evidecne given by a person who did not personally witness the event or fact that is being stated to the court as true

disparity

a situation where two or more things or people are not equal, and the inequality causes unfairness

barrister

an independent lawyer with specialist skills in dispute resolution and advocacy who is engaged on behalf of a party (usually a solicitor)

victim impact statement

a statement filed with the court by a victim that is considered by the court when sentencing- contains details about any loss, injury or damage suffered by the victim as a result of the offence

roles of the juge and magistrate

• act impartially

• manage the trial or hearing

• decide or oversee the outcome of the case

• sanction an offender

judge or magistrate act impartially

ensures public confidence in the justice system

cannot be biased- and there cannot be any apprehension or belief that a judge or magistrate may not be unbiased

judge or magistrate managing the trial or hearing

• ensure correct court procedure is followed

• ask occasional questions of the witness, recall witness for clarification, or call a new witness with permission from both sides

• during trial, judge may need to decide whether certain evidence should be permitted or not

• adjust trial processes if necessary so a party doesn’t suffer disparity

Magistrate deciding or overseeing the outcome of the case

required to listen to cases presented by both sides and decide if, based on the facts of law, the accused is guilty beyond reasonable doubt there is no jury

Judge deciding or overseeing the outcome of the case

does not decide guilt, ensures the jury understands their role and gives directions to ensure a fair trial, and summarises the case for the jury by explaining relvant laws and identify evidence

Judge/ Magistrate sentencing an offender

• after accused is foud guilty, judge or magistrate hands down a sentence at a later hearing after hearing submissions from both parties and any victims

• must follow the Sentencing Act 1991 (vic)

strengths of the role of judges and magistrates

• acts as an impartial umpire oversee the trial but do not overly interfere or help either party argue their case

• manages the hearing processes, ensuring rules of evidence and procedure are follwed and both parties can present their case

• can assist self-represented accused people and can adjust trial processes to accomodate more vulnerable people

weaknesses of the role of judges and magistrates

• they are human and there can be risks that they have actual or apprehended bias that impacts their decisons- i.e.when they are fatigued

• research suggest there is a lack of diversity amongst judges and magistrates in australia

• cannot overly interfere in a case even though they are one of the most experienced in the room

magna carta

a ‘peace treaty’ made in England in 1215 between the barons and king

oath

a solemn declaration by which a person swears the truth on a religious or spiritual belief- without religious/ spiritual belief it is an affirmation

jury directions

instructions given by a judge either during or at the end of the trial

unanimous verdict

a decsion where all jury members are in agreement, and decide the same way

majority verdict

a decision where all but one of the jury members agree

roles of the jury

• be objective

• listen to and remeber evidence

• understand directions and summing up

• deliver a verdict

overview of jury system

• trial by peers

• comprised by 12 jurors who are chosen randomly from people eligble to vote on the electoral roll

strengths of the role of the jury

• randomly picked, have no connection to the parties, make their own decison based on facts, no on biases or their own equiries

• allows members of the jury to participate in the criminal justice system processes and ensures that justice is “seen to be done”

• collective decsion-making reduced the possibility of bias

• represent a cross-section of the community

weaknesses of the role of the jury

• may have unconscious biases or prejudices, as they don’t have to give reasons for their decisons

• trials can be complex, including direction and evidence given at trial

• jury trials may result in further delays as rules, evidence and processes need to be explained to the jury- and they may need time to deliberate

• number of people cannot particiapte becuase they are ineligible, excused or disqualified - possible that a large section of the community is not represented

Victorian Law Comission (VLRC)

Victoria's leading independent law reform organisation

reviews, researches, and makes recommendations to State Parliament about possible changes to Victoria’s Laws

Examination-in-chief

the questioning of one’s own witness in court in order to prove one’s own case and disprove the opponent’s case

cross examination

the questioning of a witness called by the other side in a case

roles of the prosecution

present the entire case to the jury (or magistrate) and let them decide on guilt

• disclose information to the accused

• participate in the trial or hearing

• make submissions about sentencing

prosecution’s participation in the trial or hearing

• presenting their opening address

• presenting the evidence that supports the case

• cross-examining any witnesses

• making a closing address

prosecutor’s duty in sentencing

assist the court in determining a sentence by providing any relevant information about the offender

roles of the accused

• participate in the trial or hearing (can remain silent)

• make submissions about sentencing

these are typically performed by legal representation

accused’s participation in the trial or hearing

• presenting their opening address

• presenting evidence that supports their case

• cross-examining prosecution’s witness

• making a closing address