LEGAL AOS1 SAC PARTB

judge

an independent authority who presides over a case, ensuring fairness by overseeing all evidence and personnel

magistrate

an independent authority who presides over cases in the magistrates court for less serious matters, such as summary offences.

role of the judge/magistrate

-manage trial/hearing
-apply rules of evidence and procedures
determine guilt of accused
-impose appropriate sanction

manage trial/hearing

-ensures proceedings are on time
-judges/magistrates can improve efficiency by ensuring correct procedures, limit no. of witnesses

apply the rules of evidence and procedures

-judges/magistrates are required to make rulings relevant to evidence procedures such as; ensuring witnesses are examined/cross examined lawfully

determine guilt of accused

-role of the jury in county and supreme to determine guilt, however in judge alone or in magistrates court, they are responsible
-Crimes act 1958(vic) informs types of sanctions that should be imposed on offender
-judges can consider aggravating/mitigating factors, guilty pleas, victim impact statements during this time

role of the jury

-remain objective: jurors must remain unbiased and impartial, those who cannot due to prior connections or other factors are excused
-listen to all evidence presented: ensures verdict is based on evidence only. Jurors can also take notes to keep track
-determine verdict: jury must determine guilt after trial, and must be based on evidence presented

role of the prosecution

-give opening and closing address: prosecution must outline charges accused is facing
-determine which witnesses are called to give evidence: prosecution must call all relevant witnesses
-present evidence: since prosecution has burden of proof, they must present evidence beyond reasonable doubt

role of the accused

-enter into guilty/non guilty plea: if accused pleads guilty it will proceed to sentencing hearing where judge will announce sentence, however if they plead not guilty it will proceed to trial
-be present at all court proceedings
-Decide which lawful defence to put to the court: if an accused raises a certain defence such as self-defence, the burden to prove this then falls upon the accused

the need for legal practitioners

-uphold rule of law: -by receiving legal advice/representation: fairer outcomes can be promoted as accused can present their case in the best light possible, for the rule of law to be uphold: everyone must have access to competent and independent legal advice, law must be both readily known and available
-ensure accused understands legal processes: criminal procedure act 2009 (vic) sets out processes in vic, such as how a proceeding is commenced
-provide support: -being questioned by police of OPP can be daunting and highly stressful for accused, therefore having legal practitioner can be a comfort and accused will act more calmly

types of cost

-solicitor fees( spends time preparing for accused's defence)
-barrister fees( required in court to present arguments when accused pleads not guilty)
-appealing to higher court( filing fee, solicitor and barrister fee)

cost: ability to achieve POJ'S

fairness: VLA can provide representation, however if accused cannot afford legal rep they will have to represent themselves.Accused cannot represent their case in best light possible.
Equality: Judges in county/supreme court have power to order VLA, however they still may charge you some costs such as fees for grants.
access: VLA may provide duty lawyers or grants to assist disadvantaged accused, however their funding VLA is limited.

time examples

Time taken to appeal, hung jury (no verdict) Court Backlogs as caseload in Victoria court grows.

Impact of Time on Victims

The longer the case goes delayed, the longer the suffering is for a victim, meaning no closure or certainty justice will be served.

Impact of Time on Witnesses

Giving evidence can be stressful, and delays awaiting trial can be more stressful.

Impact of Time on Accused

Witness' memory may fade, limiting accuracy and can lead to unjust outcomes.

Impact of Time on Community

Community remains at risk if those who are charged are back in society and not in remand.

Cultural Differences

Limited knowledge about legal system: refugees/migrants may be unaware of rights in Australia, such as an accused unaware of right to seek legal representation.
Limited English Skills: Find it difficult to give evidence; if accused is self-representing, they may find it difficult to present evidence in best light.

Rehabilitation

The act of restoring an offender to normal life as a law-abiding member after they have engaged in criminal activity. such as:;
CCO: Sanctions served in the community, such as curfew, alcohol exclusion.
DTO: Imposed by drug court, where participant receives supervised treatment.

Punishment

Infliction of pain or loss to ensure offender is adequately penalised and held accountable.

Deterrence

Act of discouraging an offender or other individuals from reoffending.
General Deterrence: Individuals other than offender, such as general public, are discouraged from committing offences.
Specific Deterrence: Offender themselves is discouraged from reoffending.

Denunciation

Where court seeks to criticise offenders' criminal behaviour publicly, occurs in judge statement at the end.

Protection

Act of ensuring offenders don't pose a significant risk towards welfare and safety of victims and community.

Fines

A sanction that requires offender to make monetary payments as a penalty.

CCO (Non-Custodial Sanction)

A non-custodial sanction served by offender in community with certain conditions; judge may order CCO if offence is punishable by five penalty units or more.

Imprisonment:Ability to achieve purposes .

deterrance: The harsh punishment of prison is likely to discourage offenders from reoffending out of fear(specific deterrence), however Prison is not an effective deterrent for many offenders. as the rate of recidivism in victoria is high, with approximately 43.3% of offenders reoffending within 2 years.
protection: offender is removed from society and therefore, does not pose a significant risk to community or victim, however Long term community protection may not be achieved if an offender reoffends upon release.

Aggravating Factors

facts or circumstances about offence that leads to a more severe sentence such as: the crime was planned, weapon was used, offender has prior convictions for similar offences.

Mitigating Factors

facts or circumstances about offence that leads to a less severe sentence such as: genuine remorse, offender having traumatic personal history.

Guilty Pleas

A full admission of guilt by accused of which offence they have been charged with.

Victim Impact Statement (VIS)

Written/verbal statement made to court about effect of an offence upon victim.

barrister

Barristers are independent, specialist advocates who are trained to appear in a courtroom, in commissions of inquiry and in alternative forms of dispute resolution

Solicitor

a lawyer who advises clients about legal matters, prepares legal documentation for trial, communicates with the other party’s legal representation, researches the relevant laws, and when required engages the services of a barrister and briefs them to represent a client in court.