legal exam revision

Indictable Offences Heard Summarily

Serious indictable offences (usually heard in County Court) heard in the Magistrates' Court.

Legislative Source for Indictable Offences

Criminal Procedure Act 2009 (Vic) - Schedule 2 - Section 28(1).

Conditions for Summary Hearing

Magistrate must find the charge appropriate for summary hearing and the accused must consent.

Justification for Summary Hearing

Accused may choose summary hearing for quicker, cheaper process and lower maximum penalties.

Onus of Proof

Responsibility of a party to prove the facts of the case; the prosecution has the onus in criminal cases.

Standard of Proof

Strength of evidence needed; in criminal cases, it's 'beyond reasonable doubt.'

Presumption of Innocence

Accused presumed innocent until proven guilty.

Right to Silence

Accused not obligated to answer questions or testify.

Exceptions to Right to Silence

Must provide name and address to police; cannot reclaim right after choosing to testify.

Definition of a Victim

Suffered injury directly from a criminal offence, family member of someone who died as a direct result of an offence, family member of a person under 18 or mentally impaired who suffered directly from an offence, child under 16 groomed for sexual conduct and their family.

Right to Be Informed

Victims have the right to information about proceedings and the criminal justice system.

Right to Be Informed of Offender Release

Victims of violent crimes on the Victims' Register have the right to be informed of the offender's likely release date.

Right to Give Evidence Using Alternative Arrangements

Witnesses of certain offences can use alternative arrangements, like CCTV or screens.

Fairness in Criminal Cases

Impartial processes and open justice, subject to suppression or closed court orders.

Participation in Criminal Cases

Opportunity to know the case, prepare, examine witnesses, and use legal representation.

Equality in Criminal Cases

Same treatment for all and different treatment to address disparities and disadvantages.

Section 109 of the Constitution

Commonwealth law prevails in case of inconsistency with state law.

Law Reform

Process of changing laws to ensure they remain relevant and effective.

Reasons for Law Reform

changing social values, advances in tech, protection of the community and improving access to justice

Principle of Fairness in the Victorian Justice System

Fairness means all people should be able to participate in the justice system, and its processes should be impartial and open, ensuring a fair hearing and access to legal representation.

Purpose of the Victorian Court Hierarchy

To allow for specialisation, where courts develop expertise in specific areas of law, and appeals, allowing for review of decisions by higher courts.

Key Roles of a Judge in a Criminal Trial

Manage the trial, decide on the admissibility of evidence, instruct the jury on matters of law and procedure, and impose a sentence if the accused is found guilty.

Main Roles of Legal Practitioners in a Criminal Trial

To present their client's case, examine witnesses, make legal arguments, and advise their client on their rights and options.

Differences between mediation, conciliation, and arbitration

Mediation: a neutral third party facilitates discussion but does not offer solutions. Conciliation: similar to mediation but the third party can suggest solutions. Arbitration: a third party hears evidence and makes a legally binding decision.

High Court's role in protecting representative government

By interpreting the Constitution and potentially declaring legislation invalid if it breaches the principles of representative government, such as the implied freedom of political communication.

Community legal centres (CLCs)

Independent, not-for-profit organisations that provide free legal services to people who can't afford other legal services.

Limitations of CLCs

Most don't provide legal representation, limited legal advice and casework, very few CLCs in rural areas.

Standard of proof 'beyond reasonable doubt'

No other logical conclusion can be reached (based on the evidence) except that the accused is guilty.

Victorian Justice System

The Victorian justice system includes the criminal and civil justice systems.

Principles of Justice

The system aims to uphold the principles of justice: fairness, equality, and access.

Define

Provide a precise definition with key elements.

Outline

Briefly explain the term's main features.

Describe

Define the term and provide a detailed account of its characteristics.

Distinguish

Define two terms and explain their differences.

Codification

Parliament can enshrine common law principles in legislation.

Royal Commissions

High-level inquiries into matters of public importance.

Indictable offence heard summarily

A serious indictable offence, usually heard in the County Court, that is heard in the Magistrates' Court.

Arguments in favour of trial by jury

Juries are independent from the courts, executive and legislature; the burden of deciding guilt is shared by multiple people; jury members have no personal interest in the case.

Number of jurors in a criminal trial

12

Access in Criminal Cases

Ability to understand and engage with the justice system and availability of legal advice and assistance.

Concurrent Powers

Shared with states (e.g., taxation, marriage).

Residual Powers

Not listed in the Constitution (e.g., health, education, crime).

Bicameral Structure

Hostile upper house can hinder law-making.

International Pressures

Can influence law reform but also lead to appeasement of external views.

Representative Nature

MPs accountable to voters; can lead to reluctance to legislate on controversial issues.

Separation of Powers

Divides government into three branches: Legislative (makes laws), Executive (administers laws), Judicial (interprets and applies laws).

Express Rights

Specific rights protected in the Constitution, limited in number and scope.

Statutory Interpretation

Courts interpret the meaning of words in statutes.

Reasons for Statutory Interpretation

Ambiguous language, broad drafting, changing meanings, mistakes in drafting.

Effects of Statutory Interpretation

Binding precedent; restricted or expanded meaning of legislation.

Doctrine of Precedent

Principle that courts follow previous decisions (precedents).

Binding Precedent

Must be followed by lower courts in similar cases.

Persuasive Precedent

Not binding but can influence decisions.

Developing and Avoiding Precedent

Methods include reversing, overruling, distinguishing, disapproving.

Factors Affecting Courts' Law-Making Ability

Costs and time can deter litigants and limit opportunities for law development.

Requirement of Standing

Only those directly affected can bring cases, potentially limiting legal challenges.

Abrogation

Parliament can override common law, but not constitutional interpretations.

Statements of Compatibility

Indicate whether legislation aligns with human rights.

Means of Influencing Law Reform

Petitions, demonstrations, use of the courts, media and social media.

Victorian Law Reform Commission (VLRC)

Independent body that investigates and recommends law reforms.

Constitutional Reform

Changing the Australian Constitution.

Reasons for Constitutional Reform

Increase rights protection, change law-making powers, alter political structure (e.g., republic), recognize First Nations people.

Process of Constitutional Reform

Approval by the Commonwealth Parliament (absolute majority), approval by the people through a referendum (double majority), royal assent by the Governor-General.

Factors Affecting Referendum Success

Bipartisan support, level of public awareness and understanding, level of community support.

1967 Referendum on First Nations People

Successful in granting the Commonwealth power to make laws regarding First Nations people.

2023 Referendum on an Aboriginal and Torres Strait Islander Voice

Unsuccessful in establishing a Voice to Parliament.

Summary Offences

Minor offences heard in the Magistrates' Court without a jury. Examples include traffic offences and disorderly conduct.

Indictable Offences

Serious offences heard in the County or Supreme Court, usually with a jury. Examples include theft, robbery, and murder.

Burden of Proof in a Criminal Case

The responsibility of proving the facts of the case. In criminal cases, the prosecution has the burden of proving the accused is guilty beyond reasonable doubt.

Standard of Proof in a Criminal Case

The strength of evidence needed to prove the case. In criminal cases, it is 'beyond reasonable doubt.'

Rights of Victims in the Criminal Justice System

The right to be informed about proceedings, the right to be informed of the offender's likely release date, and the right to give evidence using alternative arrangements.

Principle of Equality in the Victorian Justice System

All people engaging with the justice system should be treated in the same way. Where differences would create disparity, adequate measures should be implemented to ensure equal opportunity.

Principle of Access in the Victorian Justice System

All people should be able to engage with the justice system on an informed basis, including physical, technological, and financial access, and understanding their legal rights and processes.

Roles of VLA and CLCs in the Justice System

They provide free legal information, advice, and sometimes representation to those who cannot afford it, helping to ensure fairness, access, and equality in the legal system.

Purposes of Plea Negotiations

To achieve a timely resolution of the case, reduce costs and stress for all involved, and secure a conviction where appropriate.

Role of the Jury in a Criminal Trial

To listen to the evidence presented, determine the facts of the case, and deliver a verdict of guilty or not guilty based on the standard of proof beyond reasonable doubt.

Impact of Costs, Time, and Cultural Differences on Justice Principles

They can create barriers to fairness, access, and equality, particularly for disadvantaged individuals or those from minority groups.

Purpose of Sanctions in the Criminal Justice System

To punish the offender, deter others from committing similar crimes, protect the community, and rehabilitate the offender where possible.

Aggravating Factors in Sentencing

Factors that increase the seriousness of the offence or the offender's culpability, potentially leading to a more severe sanction. Examples include the use of violence, the vulnerability of the victim, or a breach of trust.

Mitigating factors in sentencing

Factors that decrease the seriousness of the offence or the offender's culpability, potentially leading to a less severe sanction. Examples include remorse, early guilty plea, or cooperation with authorities.

Burden of proof in criminal cases

In criminal cases, the burden of proof lies with the prosecution, and the standard is 'beyond reasonable doubt.'

Burden of proof in civil cases

In civil cases, the burden of proof lies with the plaintiff, and the standard is 'on the balance of probabilities.'

Factors to consider when initiating a civil claim

Costs, limitations of actions, the defendant's ability to pay, enforcement issues, and alternative dispute resolution options.

Roles of key personnel in a civil trial

Judge: manages the trial, rules on evidence, and may decide the outcome. Jury: determines questions of fact and delivers a verdict. Parties: present their cases, examine witnesses, and make legal arguments. Legal practitioners: advise and represent their clients.

Class action

A legal proceeding where one person represents a group of people with similar claims against the same defendant.

Purposes of VCAT

To provide a low-cost, accessible, and timely method of resolving small to medium-sized civil disputes.

Role of CAV

To assist consumers and traders in resolving disputes through conciliation.

Roles of the Crown and the Houses of Parliament in law-making

The Crown provides Royal Assent to bills. The lower house initiates most bills and determines the government. The upper house reviews bills and represents the states/regions.

Exclusive powers

Law-making powers that can only be exercised by the Commonwealth Parliament.

Concurrent powers

Law-making powers that can be exercised by both the Commonwealth and state parliaments.

Residual powers

Law-making powers that are not explicitly listed in the Constitution and remain with the states.

Significance of section 109 of the Constitution

It establishes that Commonwealth law prevails over state law in cases of inconsistency.

Factors affecting Parliament's ability to make laws

The bicameral structure, international pressures, the representative nature of Parliament, and restrictions on law-making powers.

Separation of powers

The division of government powers into three branches: legislative (Parliament), executive (government), and judicial (courts), to prevent any one branch from becoming too powerful.

Express rights

Rights specifically listed in the Constitution, providing a check on Parliament's law-making powers by limiting its ability to legislate in certain areas.

Statutory interpretation

It clarifies the meaning of words in legislation, sets precedents for future cases, and can restrict or expand the application of the law.

Doctrine of precedent

The principle that courts are bound to follow decisions of higher courts in the same hierarchy where the material facts are similar, ensuring consistency and predictability in the law.

Ways to develop or avoid precedent

Reversing, overruling, distinguishing, and disapproving.

Factors affecting courts' ability to make law

Judicial conservatism, costs and time, and the requirement for standing.

Ways courts can influence Parliament

By interpreting statutes, making comments obiter dicta, and developing common law principles that may lead to legislative reform.