legal studies exam u3&4

committal proceedings

involves a series of pre-trial criminal procedures that are heard in the Magistrates' Court where the accused has pleaded not guilty to indictable offence(s).

- main and last stage is committal hearing

purposes of committal proceedings

- to see whether a charge for an indictable offence is appropriate to be heard and determined summarily

- to decide if there is enough evidence to support a conviction for the offence charged (tests the strength of evidence)

- to find out whether the accused plans to plead guilty or not guilty

- to make sure there is a fair trial

how do committal proceedings ensure there is a fair trial?

- making sure prosecution's case is disclosed to the accused

- giving accused the opportunity to hear/read evidence and cross examine (question) witnesses

- allowing accused to put forward a case at an early stage if they choose to do so.

- allowing accused to properly prepare and present a case

- making sure the issues to be argued are properly defined

strengths of committal proceedings

1 )) filters out weak cases,

= saves time and resources for higher courts, promotes more justice and access for stronger cases,

2 )) informed of prosecution's case

= can help prepare case w/o any unexpected issues, helps understand case against them - may agree on some fact, help decide to plead guilty/not guilty,

allows accused to test strength of prosecution's case

3 )) innocent until proven guilty

= onus is on prosecution to establish sufficient weight evidence required to convict accused - accused doesn't have to prove innocence

4 )) withdraw some charges or combine them

= quicker process + early resolution, less stress/trauma,

weaknesses of committal proceedings

1 )) complicated process for an unrepresented accused to participate in

= doesn't achieve fairness as they may be disadvantaged

2 )) expensive

- legal rep

- state prosecuting case, wastes time and resources

- may be hard for accused if in remand, no income.

3 )) adds to delays of getting court to trial

- more money spent

- reduced access to criminal justice system

- increased risk of unfair outcome

4 )) can contribute to stress + trauma may be re-experienced by victims/witnesses

= diverts people therefore reduces access to justice

5 )) unnecessary for stronger cases

- adds extra stress, burden and inconvenience to parties, victims, witnesses, family etc

institutions to assist an accused

- Victorian Legal Aid (VLA)

- Victorian Community Legal Centres (CLC)

Victorian Legal Aid (VLA)

a government agency that provides

free legal advice and information to the community

and low-cost or no-cost legal representation to people who can't afford a lawyer.

assistance provided by VLA

[] free legal info

[] free legal advice

[] free duty lawyer services

[] grant of legal assistance

free legal information (VLA)

[] free legal info

- website

- over the phone

--> available to:

| everyone

free legal advice (VLA)

[] free legal advice

- in person

- video conference

- over the phone

--> available to (those who need it most):

-- can't afford lawyer

-- disability

-- homeless

-- childen under 18

-- can't speak, read, or write english well

-- at risk of family violence

-- in custody

free duty lawyer services (VLA)

[] free duty lawyer services

- duty lawyer: person who is at court on a particular day that can help people at court for a hearing on that day. (MC & Children's)

--> available to:

-- fact sheets = everyone

-- satisfy income test -

test to determine whether duty lawyer can rep, + satisfied if they have limited income (eg centrelink benefit card, pensioner concession card)

-- straight forward charge

-- in custody ( no need for income test)

-- for legal rep = significant charge or person VLA prioritises

grant of legal assistance (VLA)

[] grant of legal assistance

- legal advice

- resolve matters

- prepare legal docs

- represent in court

--> available to:

-- meet means test -

test applied to determine whether applicant qualifies for legal assistance/rep in court, + takes into account, income, assets and expenses ($360+ per wk = not eligible)

-- can't afford lawyer

Victorian Community Legal Centres (CLCs)

these serve to provide information, legal advice, minor assistance, duty lawyer assistance and casework services.

- two types:

[] generalist:

provides legal services to people in a particular LOCAL GEOGRAPHICAL area. (EG Monash Oakleigh Legal Services)

[] specialist:

focuses on a particular group of PEOPLE or an AREA of LAW. (EG YouthLaw - legal services for

assistance provided by CLCs

[] basic legal info

[] initial legal advice

[] duty lawyer assistance

[] legal casework

basic legal information (CLC)

[] basic legal info

- online

- on a day-to-day basis

--> available to:

-- everyone

initial legal advice (CLC)

[] initial legal advice

- legal info & advice

- help w/ writing short letters

- help w/ completing forms

- phone advice

--> available to:

-- everyone

duty lawyer assistance (CLC)

[] duty lawyer assistance

- advice

- representation

--> available to:

-- urgent matters that will be completed in 1day

legal casework (CLC)

[] legal casework

- take on criminal matters (rare) + many don't do indictable offences

- legal rep & assistance

- ongoing legal services

--> available to:

each CLC has its own eligibility requirements

-- will only take case if eligible for grant of assistance from VLA (generally)

victim

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

includes:

- primary victim (suffered from direct result)

- fam mem of person who died as direct result

- fam mem of

rights of victims

1. right to give evidence as a vulnerable witness

2. right to be informed about proceedings

3. right to be informed of likely release date of the accused

1. the right to give evidence as a vulnerable witness (victim)

vulnerable witness: person who is impressionable or at risk and therefore require extra protection by the law.

includes:

-

right 1\ alternative arrangements

available to:

- all witnesses if court makes order

- automatic to complainant unless they don't want them

types of offence:

- sexual

- family violence

- obscene, indecent, threatening language/behaviour in public

- sexual exposure in public

protections/alternative arrangements to give evidence:

- closed-circuit tv

- using screens to separate line of sight of accused from wit

- support person

- removal of formalities (robes off, seated while giving evidence etc)

right 1/ special arrangements

available to:

-

right 1/ protected witness

types of offence:

- sexual

- fam violence

who can be deemed p.w?:

anyone the court declares

protection:

- can't be cross-examined directly by accused --> must be conducted by accused's rep or one assigned by legal aid

2. right to be informed about proceedings (victim)

victims' charter recognises that persons adversely affected by the crime are

entitled to certain information a

bout the proceeding and criminal justice system.

clear, timely, consistent info abt

- support services

- possible compensation entitlements

- legal assistance

- progress of investigation (unless if it may jeopardise investigation or accused does not want to be informed)

*victims must be told they are entitled to attend any court hearings.

why? - victims may wish to be informed about a case that has affected them to know that justice has been served. EG knowledge of verdict, charges, sanctions etc

3. right to be informed of likely release date of the accused (victim)

a victim of a criminal act of violence, registered on the Victim's Register may receive certain info about an offender who has been imprisoned

includes:

- likely release date

- release of parole

(two above - 14 days prior)

- length of sentence

- right to be told if offender escapes from prison

- right to make submission if offender may be released on parole

the rights of an accused

1. the right to be tried without unreasonable delay

2. the right to a fair hearing

3. the right to a trial by jury

why?

uphold POJs, avoid wrongful convictions, innocent until proven guilty etc

1. the right to be tried without unreasonable delay (accused)

unreasonable delay: charges are heard in a timely manner and delays only occur if they are reasonable

*charter of human rights places greater emphasis that children accused of a crime are to be tried asap, rather than w/o unreasonable delay

-> for reasons that impact of being an accused will be harsher and bigger on children due to age and circumstances

2. the right to a fair hearing (accused)

- heard by a competent, independent and impartial court/judge -> unbiased, qualified, no relation to parties etc

- public hearing unless the best interests of a child requires it OR a law (behinds the human rights charter act)

3. the right to a trial by jury (accused)

- guaranteed by Commonwealth Constitution BUT is a limited right. = only applies to Cth indictable offences

- however, Criminal Procedure Act (VIC) guarantees jury trial for accused who pleads not guilty to indictable offence.

summary offences

minor criminal offences heard in the magistrates court

indictable offences

serious criminal offences heard in the country or supreme court

Indictable offences heard summarily

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

- quicker and cheaper

burden of proof

the responsibility of a party to prove the facts of the case

- on prosecution

- may be reversed if accused has to plead a defence

standard of proof

the degree or extent to which a case must be proved in court

- beyond reasonable doubt in criminal cases

presumption of innocence

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

fairness

involves the fair treatment for all people under the law without fear or favour

equality

the state of being equal, especially in status, rights, and opportunities.

access

involves the provision of a range of methods and institutions to settle disputes within the legal system

legal aid

legal advice, education or information about the law

and the provision of legal services (including legal assistance and representation)

legal advice

limited guidance and information about the law and how it applies to a particular case

- lawyer giving advice doesn't have to be formally rep accused

legal representation

refers to a lawyer 'representing' an accused in the case in court.

plea negotiations

discussions between the accused, their legal representative, and the prosecution regarding the charges laid and to which the accused will plead guilty to.

(can take place for both summary and indic)

purposes of plea negotiations

1. resolve a case by ensuring a plead guilty of a *charge that adequately reflects the crime(s) committed.*

2. achieve a prompt resolution w/o the cost, time, stress, trauma & inconvenience of a trial. (including trauma of giving evidence - bc guilty plea)

appropriateness of plea negotiations

• public P.N can only occur if in public interest

• if accused is ready and willing to cooperate in investigation, pleading guilty,

• if witnesses are reluctant/unable to give evidence → could jeopardise prose. ability to achieve guilty verdict

• if witnesses will be adversely affected by further stress & inconvenience as conseq. of full trial

also taken into consideration:

• strength of prose. case - including evidence & defences accused could argue

• time & expenses - involved in full trial especially for prose. → cost of running case

• views of the victim - prose. can consult & account their views.→ not deciding factor

• likelihood of a long trial

strengths of plea negotiations

• saves court time & cost of a trial → reduces pressure on court system, less delays. frees financial resources - can be spent elsewhere

• minimise stress & trauma - for victims, witness & families. → avoid re-living crime.

• win/win scenario achieved → accused: lesser charges, prose/commun: avoid re-living stress & trauma, retribution

weaknesses of plea negotiations

• can soften deterrent effect of punishment → accused can bargain for lesser punishment

• undermine public confidence:

- accused perceived as being ‘let off easy’, or getting lenient sentence that doesn’t reflect crime.

- lack of transparency → P.Ns can be disclosed and held privately

- prose. avoids need to prove case beyondRD, → can be argued P.Ns undermine presumption of innocence

- reduce the severity of charges → ppl may question agreement/reason as to why

• if P.N fails, party may be dis/advantaged if matter proceeds to trial → eg prose. may have insight on weaknesses of accused’s case.

sentence indications

indications that aim to encourage an accused to enter early guilty plea.

(can be given for both summary & indictable)

• Under Crim. Procedure Act: accused is able to request indication from judge/mags. about likely sanction to be imposed if they pleaded guilty to offence charged.

key requirements for sentence indications for indictable offences

• accused must apply a sentence indic.

• prose. doesn’t have to give consent to sent. indic. being given but can oppose

• second or subsequent sent. may be given if there has been change in circumstances (since prev sent. indic.) if it is likely to affect prev. sent. indic.

• indication as to whether a:

sentence of a specified type

or a specified maximum total effective sentence

-is likely to be imposed

key requirements for sentence indications for summary offences

• sent. indics. can be given at anytime during the proceeding by M.C

• consent of prose. not required

• indication as to whether sentences of imprisonment/sentences of another type is likely to be imposed

effects of sentence indications

guilty:

• if non-custodial indic. is given & accused pleads guilty at next avail. time (ie next pretrial hearing) → sentencing is binding on judge

not guilty:

• different judge will likely preside over trial & discounted sentence will not be discounting.

appropriateness of sentence indications

factors considered:

• type of offence committed

-indic = accused must make application/prosecution. may oppose

-certain offences (sexual) may not be appropriate

-cases dealt by S.C generally not approp. as they are likely to not have custodial sentence imposed

• info available to judge/mag

-does judge/mag have sufficient info about impact of crime on victim to make sent. indic?

• whether accused has applied/prosecution. objects

-DPP(prosecution) must seek views of victim(s) before deciding whether to object

strengths of sentence indications

• early determination of case → saves court time/money

• given by experienced & impartial judge/mags.→ more confidence in appropriateness of sentence.

• benefits victims → saves victims/witnesses trauma of testifying in court/re-living ordeal

• benefits accused → reduced sentence as incentive for pleading guilty & certainty in outcome

weaknesses of sentence indications

• relies on support of prose. & judge → accused can be denied of opp. to plead guilty & receive reduced sentence.

• can disadvantage the accused → only an indic. not exact sentence.

• can negatively impact victim(s) → who is denied of ‘day in court’ or victim impact statem. might carry less weight

original jurisdiction

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

appellate jurisdiction

ability of a court to hear a case where a decision is being reviewed or challenged/appealed to a higher court.

reasons for a court hierarchy

• specialisation of court

• allows for appeals

• doctrine of precedent

• administrative convenience

specialisation

courts have their own areas of expertise/specialisation

S.C (appeal) - specialises in determining criminal appeals for indic offences & has expertise in particular sentencing principles

S.C (trial) - hears most serious indic offences & will have developed specialisation in those areas of law

C.C - specialises in hearing most indic offences, particularly sexual

M.C - familiar w/ cases involving summary offences

appeals

if a party is dissatisfied w/ a decision, they can take the matter/appeal to a higher court to challenge the decision

appellant

the party who appeals

respondent

the other party in appeals

grounds for appeal

• appealing on a question of law → eg some laws not followed like jury hearing admissible evidence.

• appealing a conviction → eg accused found not/guilty.

• appealing due to severity/leniency of sanction imposed → in some circumstances may need a leave of court to appeal.

the role of the judge

• act as an ‘umpire’ at trial & ensure parties are treated fairly

• act impartially - no favouring, connections w parties etc

responsibilities of the judge

• manage the trial

• decide on the admissibility of evidence

• attend to jury matters

• hand down a sentence

manage the trial - responsibilities of the judge

• ensure strict rules of evidence & procedure are followed

eg prose. commences trial w presenting case, how wits are questioned ie cross-exam, exam-in-chief

• decide any questions of law which arise

eg parties may present evid. to suggest relevant law that applies to case, but judge must decide relevant law

• give directions during trial

decide on the admissibility of evidence - responsibilities of the judge

to be admissible, evidence must be:

• relevant to issues in dispute

• legally obtained

• be given by an eye witness or expert

*inadmissible evidence is not allowable - includes

hearsay evidence: when wit. relies on something that someone else said in a situation, but wit. didn’t actually see what happened. → evidence not adequately tested.

exceptions to hearsay - where person who made statement is not available to give evidence and certain circumstances.

attend to jury matters - responsibilities of the judge

• supervise the selection & empanelling of jury

judge provides potential jurors w info about trial and accused to make sure any person can be excused from being juror depending on circumstances

• directing & summing up the case for jury

eg judge may direct jury on that accused is not required to give evidence and shouldn’t assume guilt due to this.

• asking clarifying questions

judge may ask questions, re/call wit. etc for matter to be clarified

hand down a sentence - responsibilities of the judges

• if jury finds accused guilty/accused pleads guilty → case will be set for plea hearing & the parties will make submissions about sentencing

• following the hearing, judge must hand down a sentence/impose a sanction accordingly to sentence guidelines in the Sentence Act.

the jury

a representative cross-section of the community, randomly selected from the electoral roll to decide on evidence in a legal case and reach a verdict.

responsibilities of the jury

• be objective

• listen to all the evidence

• follow judge’s instructions

• decide questions of the fact, deliberate and deliver verdict

be objective - responsibilities of the jury

jury must be unbiased and bring open mind to the task, put aside any prejudice or preconceived ideas. - no connection w the parties and decision of guilt must be solely based of the facts of the case

listen to all the evidence - responsibilities of the jury

• can take notes, but must also concentrate on what is taking place in courtroom → little attention can = discharge

• mustn’t undertake own investigation about case → can = penalty & discharge

follow judge’s instructions - responsibilities of the jury

• jury required to listen to directions and summing up given by judge. they can ask an explanation/question about any legal points they don’t understand

decide questions of the fact, deliberate and deliver verdict - responsibilities of the jury

• jury must take part in deliberations in jury room and form opinion.

• deliberations are confidential → generally not allowed to be disclosed.

• jurors should be undertaken freely w/o coercion of one juror by another to reach verdict.

• verdict must be made based on facts of case. → requires unanimous verdict (12/12), but may accept majority verdict (11/12), unless accused is charged w murder, treason.

prosecution

party bringing the criminal case to court.

accused

person who has been charged with a criminal offence.

responsibilities of the parties

• jury selection

• present the case

• give a closing address

• make submissions about sentencing

jury selection - responsibilities of the parties

both parties assist in empanelling the jury/deciding which 12 people will form the jury.

• both parties have the ability to challenge potential jurors with/out reason → limit of 3 challenges can be made to juror without reason, but no limit if there is a reason.

• party can request judge to give directions to jury during the trial (eg if prose. doesn’t call particular wit. accused can request judge direct jury on that fact)

present the case - responsibilities of the parties

• prosecution has the burden of proof and needs to present evidence to prove the facts

• prosecution is required to present to jury all credible evidence considered relevant to case even if it doesn’t benefit prose’s case.

• no obligation for the accused to give evidence or call any witnesses. can also stay silent (right to silence)

give closing address - responsibilities of the parties

• both accused and prose. are entitled to address jury to sum up the evidence after the close of all evidence

- and before the closing address of the accused (prosecution)

- and after the closing address of the prosecution (accused)

make submissions about sentencing - responsibilities of the parties

the parties may make submissions about sentencing to the court once/if the accused is found guilty

• usually occurs at a plea hearing that is held after jury delivers its verdict

legal practitioners

people who, on behalf of the parties, undertake the role of preparing and conducting a case.

• they must put duty to court over and above their duty to the client

2 types of legal practitioners that an accused is usually represented by at trial

• solicitor

• barrister

role of a solicitor

• drafting documents

• communicating w/ the other party & court

• preparing the case

• researching the law

• developing the evidence

• instructing the barrister

role of a barrister

• present evidence at trial

• argue the case

responsibilities of legal practitioners

• comply with their duty to the court

• present the case in the best light possible

comply with their duty to the court - responsibilities of legal practitioners

they owe a duty to the court → means that they must act ethically & in accordance w/ the law, even if it means going against the client’s wishes/instructions.

present the case in the best light possible - responsibilities of legal practitioners

includes

• questioning the witnesses. → to test evidence eg exam-in-chief, cross-exam, re-exam.)

• summing up the evidence & giving a closing address.

• making submissions about the appropriate sentence. - if accused pleads/is found guilty

sanctions

a penalty imposed by the courts

• the Sentencing Act establishes types of sanctions that can be imposed

aims of sanctions

• rehabilitation

• punishment

• deterrence

• denunciation

• protection

rehabilitation

serves to assist the accused to become a law abiding citizen & prevent reoffending

includes:

• treatment of offender - often required to help address cause and reasons behind offending

• DTO

• CCO

• rehabilitation programs offered to prisoners in prison system eg life skills program

punishment

purpose is for society to feel that there has been some revenge/retribution against the offender for their unacceptable behaviour.

• should be appropriate to offence so that society feels justice has been served

deterrence

aims to discourage the offender/other people from committing the same/similar offences. can also act as a disincentive.

• two types: specific and general deterrence

specific deterrence

aims to deter the offender from re-committing the offence

general deterrence

aims to deter the community by signalling that a particular crime will attract a harsh penalty

denunciation

refers to the disapproval or condemnation of the court

• court seeks to highlight the gravity of an offence by imposing a more significant sentences, thereby denouncing the crime

protection

allows for the community to be protected from the offender by removing an offender from society and putting them into prison

• CCO, imprisonment

protection - indefinite sentence

• if a person is convicted of a serious crime, court may sentence offender to an indefinite term of imprisonment.

• can only be imposed if satisfied to high degree of probability that offender is a serious danger to the community because of:

- character, past history, health, age, mental condition

- nature & gravity of offence

- any special circumstances

fines

a monetary penalty paid by the offender to the state

• expressed in levels 1-12 penalty units (11 in vic)

→ achieves deterrence, denunciation, punishment

factors to consider when evaluating fines

• financial circumstances of offender

• burden payment of fine will impose

• loss/damage/destruction of property suffered as result of offence

if fine can’t be paid = CCO, imprisonment or instalment plans etc

• is there a more appropriate sentence?

• does the fine have ability to denounce crime?

• is fine sufficient enough to act as general deterrent?