SAC 1A

summary offence

a minor offence that is generally heard in the magistrates court

summary offences act 1966 (Vic)

indictable offence

a serious offence generally heard before a judge and a jury in the County/Supreme Court

Crimes Act 1958 (Vic)

indictable offence heard summarily

a serious offence that is dealt with as a summary offence if the court & accused agree

summary offence example

drinking offences, minor assaults, disorderly conduct

indictable offence example

homicide, fraud, trafficking

presumption of innocence

a person will be treated as though they are innocent until they have been proven guilty

enshrined in Charter of Human Rights & Responsibilities Act 2006 (Vic) s.25

burden of proof

the party who holds the responsibility to prove the facts of the case to find the accused guilty

lies with prosecution

standard of proof

strength of the evidence against the accused needed to prove the case

beyond reasonable doubt - no other logical or reasonable conclusion can be reached

narrow exceptions to burden of proof

• drug possession case where accused has been caught with drugs - the accused must prove that the drugs were not in their possession

• pleading a defence

narrow exceptions to standard of proof

when burden of proof falls on the accused, this alters the standard to ‘on the balance of probabilities’

How is presumption of innocence upheld?

• burden of proof - rests w prosecution

• standard of proof - high threshold

• right to silence - no need to defend themselves - no adverse inferences can be drawn

• prior convictions not revealed until accused is found guilty

• bail - person can remain in community as an innocent person

rights of an accused

right to silence

right to trial by jury

right to trial without unreasonable delay

right to silence

the accused does not need to say or do anything when

• answering questions from law enforcement

• give info as part of investigation

• cannot be forced to give evidence

right to silence act

Evidence Act 2008 (Vic) - s.89

adverse inferences

no negative conclusions can be drawn from an accused exercising their right to remain silent

section 89 of Evidence Act 2008 (vic)

right to trial by jury

a person charged with an indictable offence is entitled to be tried by his or her peers

relevant legislation for right to trial by jury

Criminal Procedures Act 2009 (Vic) guarantees the right

Section 80 of Aus Constitution - only for commonwealth indictable offences

Jury trial - upholding/not upholding fairness

How Juries Uphold Fairness	How Juries May Not Uphold Fairness
Impartial and Unbiased: Jurors are impartial and have no connection to the case, ensuring they can remain unbiased.	Bias or Prejudice: Juries may hold personal biases against certain groups or individuals, potentially affecting the verdict.
Evidence-Based Verdict: The jury’s verdict is based only on the evidence presented during the trial.	Lack of Legal Expertise: Jurors may not fully understand legal concepts, which can lead to misinterpretation of evidence or law.
Community Values: The jury reflects the broader community’s values, ensuring justice is administered in line with societal standards.	Not a True Representation: Due to disqualifications, excusals, or challenges, the jury may not always represent the true diversity of society.
Random Selection: Jurors are randomly selected from the electoral roll, which provides a cross-section of the community.	Challenges to Jurors: Potential biases during the jury selection process can result in a jury that is not fully representative of the community.
Shared Decision-Making: Jury deliberations allow for group decision-making, spreading out any bias or prejudice from a single juror.	Influence of Dominant Jurors: A single juror or a few jurors could dominate the deliberation process, potentially swaying the verdict unfairly.
Right to Trial by Jury: The right to a jury trial applies to all individuals charged with indictable offences.	Emotional Influence: Jurors may still be swayed by emotions or personal experiences, impacting their impartiality.
Ability to Excuse Jurors: Jurors have the ability to excuse themselves if they cannot remain impartial, ensuring fairness.

right to be tried without unreasonable delay

accused is entitled to have their charges heard in a timely manner, rather than tried ‘as soon as possible’

right to be tried without unreasonable delay (Act)

Human Rights Charter s. 21 & 25

‘reasonable’ delay meaning

case-by-case

depends on:

• complexity of case

• seriousness of the charges

• amount of evidence needed to be collated

• number of witnesses

issues with delays (right of accused)

• evidence can become problematic

• if accused is held in remand - presumption of innocence

• costs associated with lengthy trial

• closure for victim is delayed

right to trial w/o unreasonable delay - fairness

• delays can hinder accused’s defence due to unavailable evidence & faded memories - not a fair opportunity to defend themselves

Equality - right to trial without unreasonable delay

• universally afforded to all accused - without discrimination

• ppl under 18 - as quickly as possible - substantive equality

Access - right to trial w/o unreasonable delay

• delays can create barriers to justice as it can increase costs etc.

• if case is sped up too much, an accused may not be able to access the legal support they need

victim

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

rights of victims

right to give evidence using alternative arrangements

right to be informed about the proceedings

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

who has the right to give evidence using alternative arrangements

a victim can give evidence in a different way

• sexual offence

• family violence offence

• offence for obscene, indecent, threatening language or behaviour in public

• sexual exposure in public

evidence using alternative arrangements act

Criminal Procedures Act 2009 359

• court can direct

Criminal Procedures Act 2009 360

• sets out AAs

types of alternative arrangements

• giving evidence via CCTV

• screens to block accused & witness from vision

• support person for victim

• closed court to exclude media & public

• legal practitioners not formally dressed or seated while questioning

vulnerable witnesses

• children

• mentally impaired ppl

• victims of family & sexual violence

how do alternative arrangements promote fairness?

• reduce trauma

• opportunity to participate without trauma & intimidation

• victims made to feel more comfortable

how do alternative arrangements NOT promote fairness?

• limited to victims of sexual/family violence offences

• may inadvertently influence jury’s perception - may think accused is guilty if alternative arrangements are required

right to be informed about proceedings

Vic Police & prosecution are mandated to provide updates to victims of crime regularly

unless victim does not want info, or it would jeopardise the investigation

right to be informed about proceedings act

Victims Charter s. 7,8,9

what info does OPP give to victims (right to be informed)?

• charges against person

• if no charges, reasons to why

• changes to charges

• date, time & place of hearing

• final outcome of proceeding

• details of appeal

right to be informed - POJs

fairness - victim can prepare themselves emotionally so they can participate in the CJ system & court

access - access to info & informed basis

right to be informed of the likely release date of accused

victims of violent crimes can be included on Victims Register to receive info of the release of a prisoner on parole 14 days before release and notification if the prisoner escapes from prison

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

Victims Charter s. 17

victims register other info

• maximum sentence of prisoner

• earliest possible release date

• offender’s transfer

• offender’s death

right to be informed of likely release date - POJs

access - promotes informed basis

fairness - allows emotional preparation

equality - only available to victims of violent crimes

What is VLA

Victorian Legal Aid is a government funded agency that provides free legal information to the community and legal advice and no/low cost legal representation to ppl who can’t afford a lawyer

court can order VLA to fund a case if accused cannot receive fair trial

Criminal Procedure Act 2009 (Vic) s.197

VLA - free legal info (accused)

• comprehensive website

• educational resources

• Legal Help Chat

info on court processes, rights available, summary v indictable offences

promotes access

VLA - free legal advice (accused)

• over the phone

• video conferencing

• in person appointments

relating to - how the law applies to a case & next steps for accused

depends on income & is available to those who need it most

VLA - duty lawyers (accused)

a legal practitioner available on the day (Magistrates’ Court)

• info

• advice

• represent you in court that day

• refer a legal aid lawyer to run your case

eligibility:

for advice - income test & straightforward/significant charge

for representation - income test & significant charge or be priority client & straightforward/significant charge

VLA - ongoing legal rep (accused)

grant of legal assistance may be provided for in-house lawyer to to fund a private lawyer

• must satisfy means & merits test

missing middle

accused that do not qualify for legal aid but cannot pay for private lawyer

VLA - free legal info (victims)

info on

• going to court as witness

• making application for family violence protection order

• financial assistance

• Victims Legal Service

VLA - free legal advice (victims)

Victims Legal Service

• apply for financial assistance

VLA - duty lawyer (victims)

provided for those seeking a personal safety intervention order & may receive representation

• no income test

VLA - grant of legal assistance (victims)

for ppl applying for family violence protection order or personal safety intervention order

Strengths of VLA

• ppl from disadvantage can access legal services

• comprehensive range of services

• free legal info is available regardless of eligibility

• legal advice & representation goes to ppl who need it most

• VLA can organise interpreter & speak many languages

• RRR ppl can access

Weaknesses of VLA

• no unlimited funding therefore need eligibility criteria

• missing middle

• VLA dependent on funding so if demand increased fewer ppl would be eligible

• legal info may not be enough

• victims of crime do not get legal rep giving evidence

• community must be aware of VLA to access it

What are CLCs?

Community legal centres are independent organisations that provide free legal information, advice and ongoing assistance and representation, to people who may not be able to afford to access these services

Relationship b/w VLA & CLCs

CLC will help ppl get help from VLA
VLA will refer ppl to CLC

Types of CLCs

generalist - provide a broad range of legal services to people in a particular geographical area of Victoria

• moonee valley legal service

specialist - focus on a particular group of ppl/area of law

• youthlaw

CLC - basic legal info (accused)

website has basic legal info

Fitzroy Legal Service has The Law Handbook:

• criminal matters

• court proceedings

CLC - legal advice and assistance (accused)

CLCs can offer prelimary assistance - writing short letters & completing forms

Whittlesea have mobile legal service to give advice

CLC - ongoing casework (accused)

some CLCs offer ongoing legal rep

eligibility

• type of legal matter

• whether VLA is available

• whether accused will succeed

• whether CLC can assist

CLC - basic legal info (victims)

Law Handbook

• criminal matters like family vilenceviolence

• details on family violence intervention order & application to court

CLC - legal advice & assistance (victims)

CLC can give preliminary assistance - filling in forms & helping to make application

CLC - uty lawyer services (victims)

some CLCs offer duty lawyer for ppl seeking FVPO / PSPO

CLC - ongoing casework (victims)

mainly for applying for financial aid or applying for FVPO /PSPO

Strengths of CLCs

• prioritise those who need assistance most

• provide comprehensive range of services

• free legal info is available

• can provide legal info in different languages

Weaknesses of CLCs

• no unlimited funding

• service gap - missing middle

• most CLCs do not offer assistance for indictable offences

• CLCs may not have enough staff to meet demand

• use is dependent on awareness

Gray v DPP

if accused is held in remand and their trial is not taking place within a reasonable period, they can apply to be tried without unreasonable delay

Alqudsi v The Queen

accused cannot waive their right to trial by jury

Dietrich v The Queen

if a person is charged with a serious indictable offence and is unrepresented, they should be given the opportunity to seek legal rep

based on right to fair trial

court can adjourn a trial of serious indictable offence if

• accused does not have legal rep or

• cannot afford a lawyer

• will not get a fair trial if they are not represented