legal 1

what counts as legal aid?

what counts as legal aid?

legal education, information, advice, AND actual legal representation

5 roles of VLA

-to provide free legal information: VLA’s website has free resources about criminal cases

-to provide free legal advice in person by video conference (to those who need it most like homeless people, children, people who can’t speak/read/write English well, Indigenous Australians, risk of family violence, custody, etc.

-to provide free duty lawyer services (a person who is in court on particular day to help those there for a hearing) only in MC and childrens’ no indictable. Once off quick advice and representation on the same day to people who satisfy the income test.

-provide a grant of legal assistance by providing ongoing legal casework and/or representation to accused who pass the means and merit tests

-make recommendations about law reform, by writing submission to gov about strengths and weaknesses on new laws from the perspective of their clients and purposes

whats an income test

the accused must show that their earnings are low enough to be provided with once-off legal advice by duty lawyers

whats a means test

test used to determine whether a person can actually afford a legal practitioner through assessing income, assets and expenses. Need to pass to receive a grant of legal assistance

whats a merits test

a grant of legal representation needs to have a reasonable prospect of affecting the outcome of the accused’s case such as a lesser sentence.

4 roles of CLCs

1- provide free legal information via their websites, accused applies the law to themselves

2- provide free legal advice in-person via ‘drop-in session’ and on the phone, where a legal practitioner applies the law to a case

3- can provide duty lawyer service for urgent matters that will be completed in one day for people who need it most (disability, custody, children)

4- make recommendations about law reform, by writing submission to gov about strengths and weaknesses on new laws from the perspective of their clients and purposes

how can u split arguments for increasing VLA funding

what it is:

The Access to Justice Review recommended that the Commonwealth and the Victorian Government increase the amount of funding provided to Victorian legal aid services (e.g. VLA and CLCs) in order to reduce the number of people in the ‘missing middle.’ Currently, this is still the case. NEED GOOD DATE COME BACK

impact on time/efficiency and thus access: If less accused persons are self-represented due to increased funding from VLA, increases chance of their cases running more efficiently, which reduces backlog, saves court time and resources, more people can access VCJS. On the other hand, there may be more economically efficient ways of promoting access such as improving the legal education of the general community.

impact on cost on accused to promote equality: Increased Legal aid promotes equality by reducing relevant disadvantage of the “missing middle” who can't afford private legal representation but not eligible for current VLA funding, by making them equal to the expertise of the prosecutor. On the other hand, inequality between the accused and prosecution may still exist, as duty lawyers will have a weaker case than a prosecutor due to the duty lawyer legally assisting the case for only one day.

impact on fairness of accused: Upholds hearing rule by providing accused persons who cannot afford legal rep with a grant of legal assistance they need to better prepare and state their own case and hear the prosecution’s case, compared to if they were ineligible for funding. On the other hand, while increasing funding can increase chance of obtaining a grant, the accused may still not pass the merits test, hindering their ability to adequately present their case and hear the prosecution’s to the best light.

how can u split arguments for abolishing committal proceedings

what it is: recommended in various submissions (including the DPP) made to the Victorian Law Reform Commission (VLRC) as part of its current inquiry into whether committal proceedings should be abolished = due to result in a report in March 2020.

effect on victims and prosecution: On one hand, in terms of fairness, abolishing committal proceedings avoids victims being cross-examined twice, avoiding victims not wanting to state their case in court. This ensures the hearing rule is upheld. On other hand, abolishing committal proceedings reduces the time given for prosecution to determine how to present their case (hearing rule). In terms of equality, abolishing committal proceedings avoids victims being cross-examined twice, which avoids further trauma and disadvantage on vulnerable witnesses. In terms of access, abolishing committal proceedings avoids victims being cross-examines twice, which avoids trauma faced by that serving as a barrier that prevents victims from pursuing their case in court. However, abolishing committal proceedings reduces the time given for prosecution to determine how to pursue their case in court.

effect on accused: On one hand, abolishing committal proceedings upholds fairness for self-represented accused persons who may struggle to prepare their own case without representation in such processes. On the other hand, abolishing committal proceedings also removes the accused’s opportunity to hear the prosecution’s evidence against them, and prepare their own if legally represented. In terms of equality, abolishing committal proceedings reduces the extent to which disadvantages are faced by self represented accused persons who cannot adequately understand or navigate the complexity of committal proceedings, compared to legally represented accused persons. However, abolishing committal proceedings can result in cases not being dismissed, which could increase the disadvantage experienced by self-represented accused persons who will need to defend themselves against more charges.

effect on VCJS: On one hand, abolishing committal proceedings when the prosecution’s evidence is strong saves time, money and resources otherwise spent in the proceedings, which avoids evidentiary issues in other cases that are unreasonably delayed and thus unfair. On the other hand, abolishing committal proceedings when the prosecution’s case is weak wastes time on cases likely to be acquitted, increasing chances of evidentiary issues in cases of more strength in evidence, which is unfair. In terms of access, abolishing committal proceedings when the prosecution’s evidence is strong saves the time, money and resources otherwise spent in the proceedings, avoiding holding up other people’s ability to pursue their cases and access the VCJS. However, abolishing committal proceedings when the prosecution’s case is weak would waste money and time, due to the state having to pay for a trial that was likely to be acquitted, holding up other people’s ability to pursue their cases and access the VCJS.

purposes of plea negotiations

• to save time, money resources by encouraging an accused to plead guilty to avoid going to trial

• prevent further harm, trauma or stress to the victim by encouraging an accused to plead guilty to avoid going to trial

• provide a degree of certainty to all parties by securing a conviction if accused pleads guilty

appropriateness of plea negotiations

strength of a party’s case:

If a party’s case is strong, this points against a plea deal being appropriate because the party’s case is likely to succeed in court.

→ If the accused’s case is strong: they will be acquitted in trial, = preferable to pleading guilty.

→ The prosecution’s case is strong: they will succeed in court = a more severe sanction will be imposed, thereby achieving retribution for the state and the victims.

If a party’s case is weak, this points in favour of a plea deal being appropriate because the party’s case is unlikely to succeed in court.

→ The accused’s case is weak: they will likely be found guilty, which will result in the accused receiving a more severe sanction VS sanction if they had pleaded guilty (guilty plea is a mitigating factor).

→ The prosecution’s case is weak, the accused will likely be acquitted, not sentenced.

Cost and time

If the criminal trial is likely to be expensive and/or time-consuming, this points in favour of a plea deal being appropriate because the parties want to resolve the case as quickly and cheaply as possible (as long as justice is not compromised).

→ Prosecution doesn’t want to waste their time & the state’s money (taxpayers) → The accused doesn’t want to waste their own time and money. → However, if they are wealthy/going to receive a grant of legal assistance, this renders a plea deal less appropriate from their perspective.

Trauma

If the summary hearing or criminal trial is likely to be traumatic: This points in favour of a plea deal being appropriate because it reduces the amount of trauma experienced by relevant people (victims, witnesses and accused), thus reducing the damage caused to communities by Victoria’s criminal justice system.

Victim’s view

If the victim wants a plea deal: It is appropriate because respecting the victim’s view helps increase the victim’s confidence in Victoria’s criminal justice system, in turn increasing the likelihood that they will obey the system in the future

If the victim is against a plea deal: This factor points against a plea deal being appropriate because going against their wishes may decrease their confidence in Victoria’s criminal justice system, thereby decreasing the likelihood that they will obey the system in the future

purposes of sentence indications

• encourage a guilty plea by informing them of likely benefits of early plea through lower sanction? CHECK

• save time, money and resources by reducing number of matters where accused persons plead guilty late in proceedings

• assists the accused in weighing up their legal options by putting them in better positions to make informed decisions on how to plea

appropriateness of sentence indications

NOT APPROPRIATE

• if trial has already commenced

• if the judge believes they do not have enough information about the impact of the accused’s offending on the victim to make a reasonable indication. Can increase public confidence in VCJS, and prevents accused from receiving an unhelpful indication?

• usually irrelevant in the SC-T because crimes heard in their original jurisdiction tend to be so severe that the accused with receive a term of imprisonment no matter their plea.

• (for 2nd indication), if there has been no significant change in circumstances since the previous indication

• If the views of victims oppose giving the accused a sentence indication

APPROPRIATE

• if trial has not already commenced

• if the judge believes they have enough information about the impact of the accused’s offending on the victim to make a reasonable indication.

• if case is held in Magistrates Court in cases where the offending can involve different sanctions, which could provide clarity or remove fear off the accused

• (for 2nd indication), if there has been a significant change in circumstances since the previous indication that will likely alter it

• If the views of victims are for the judge giving a sentence indication

what changes have been made to sentence indications

• court may not give sentence indication after trial commences (old regime was any time after filing indictment. so now just file indictment→ trial starts

• court may indicate the specified maximum total effective sentence which will “cap” the sentence (old regime did not involve length of sanction)

• no longer need prosecutor consent for judge to give sentence indication (they can still oppose it though)

• sentence indication may be given more than once if a change in circumstances since the previous one has risen (old regime was only on indication unless prosecution otherwise asks)

• no longer need a different judge to preside over trial where the accused does not plead guilty at the first available opportunity.

• prosecution (DPP) must seek views of victims before deciding whether to oppose an application for a sentence indication (old regime didn’t have this)

purpose of punishment

= to penalise the offender in a manner/to an extent that is just in all the circumstances of the case, so the victims and the community feel that just retribution has been achieved.

→ Thereby increasing public confidence in Victoria’s criminal justice system, so that its members are more likely to obey the law and the likelihood of vigilantism is decreased.

purpose of protection

= to prevent the offender from harming/further harming the community.

purpose of deterrence

Specific deterrence = discouraging the offender from committing the same offence (ora similar offence) again, as they don’t want to receive the same (or worse) punishment.

General deterrence: discouraging the general public from committing the same/similar offence to that of the offender, who don’t want to receive a similar punishment.

purpose of denunciation

= expressing the court’s disapproval of the offender’s conduct to the offender & the public

→ The public shaming of the offender can reduce the likelihood of them reoffending

→ The courts publicly reflecting/advocating for the community’s views about the unacceptability of the offender’s behaviour can increase public confidence in Victoria’s criminal justice system.

purpose of rehabilitation

= treating the factors underlying the offender’s criminal conduct so to prevent reoffending

Recidivist = a person who continues to commit crimes after they have been punished for committing these crimes.

mitigating factors (def, exs, effect)

circumstance relating to the accused/victim that reduces the severity of the charge or reduces their culpability for it.

Ex

• Early guilty plea

• remorse

• prospects of rehab (usually linked with being young)

• first offence (no prior convictions)

• young (have chance to reform into good member of society)

• having a disability that could make them not fully aware of their actions’/serve as a reason for committing them).

• no actual victim

• victim provoke the offender in a legally recognised way (racially abused them)

→ Likely to result in a less harsh sanction imposed on the accused by the judge. MUUT RELATE TO CASE AND SAY WHY ITS ADVANTAGE FOR SAC

aggravating factors (def, exs, effect)

circumstance relating to the accused/victim that increases the severity of the charge or increases their culpability for it.

Ex:

• prior offending

• whether offence was committed on bail or during a CCO

• weapon/particular aggression used.

• A crime was planned, motivated by hatred, had an “outnumbered” victim or vulnerable person

• offending breached victim’s trust/duty of care (parent, teacher)

Likely to result in a harsher sanction imposed on the accused by the judge due to increasing seriousness of offending. RELATE TO CASE AND SAY WHY ITS WEAKNESS FOR SAC

guilty pleas

= the process that allows the accused to formally admit guilt to their charged offence(s) in first available opportunities. This avoids a trial and go straight to sentencing as it prevents the accused needing to be found guilty in court.

• These are treated as a mitigating factor and allow the court to

reduce a sentence.

• If the court gives a discount for a guilty plea, the judicial officer

MUST state what the sentence would have been without the

guilty plea.

→ This is because guilty pleas save the cost of a full trial, reduce

delays and spare victims and witnesses the potential trauma of

giving evidence.

→ However, can be viewed by community as not adequately achieving retribution for the state and the victim(s) due to the accused receiving a less severe sanction that may not reflect severity of their criminal conduct

victim impact statements (def, effects, what judge should do)

= (A victim’s right under the Victims’ Charter), a written document that specifies the impacts the victim has suffered as a direct result of the crime, such as details of any physical and mental injury/loss/damage/ effect on loved ones.

Medical and psychological reports can be attached to a victim impact statement to support claims.

→ Can be written by the victim themselves or another person (e.g. due to mental illness)

→ Its contents must be checked to be legally admissible

→ A victim can request to read their statement in court or have it presented by prosecution/3rd party. THIS INCREASES THEIR ACCESS to justice system by allowing them to participate in court procedures. Their statement is a statutory declaration (legal written statement)

WHAT A JUDGE SHOULD DO WITH A VIS

• considered by judge by weighing it against other mitigating and aggravating affects of a case to reach the most appropriate sanction imposed on accused that ensures fair retribution and justice for all (accused, victims, general vic community)

→ thats under Sentencing Act 1991 FYI :)

CCO def, conditions examples

= a type of sanction involving the offender serving a supervised sentence in the community. This supervised sentence will include 7 core conditions and at least 1 special condition.

CORE CONDITIONS

→ Offender must consent to a CCO

→ Viewed by the community to be the ‘softer option’ as compared to imprisonment Core conditions include:

→ Offender must report to and receive visits from a community corrections officer.

→ The offender must not leave Victoria without the permission of a CCO officer

SPECIAL CONDITIONS EXAMPLES

→ Specified number of paid community work (<600 hours) → Treatment and rehabilitation condition → Non-association with a specific person/group of people condition → Curfew condition → Place/area exclusion condition = must not enter particular place/area → Residence restriction/exclusion = must live/not live at a specific place

How do CCOs achieve purposes of sanctions

eProtection

On the one hand, the several conditions of a CCO help protect the community by monitoring and limiting the behaviour of offender. E.g. area restriction (special) prevents re-offending related there. Additionally, treatment and rehabilitation condition & non-association special helps treat the factors underlying the offender’s criminal conduct and thus prevent the offender from reoffending in the long-term (which will protect the community).

On the other hand, an offender is still participating in society to a relatively normal extent, and the conditions may not guarantee that the accused does not further re-offend and harm the community

Punishment

On the one hand, several core conditions of CCOs restrict offender’s liberty & freedom of movement. E.g. not leaving VIC without permission or having a curfew. On the other hand, the a CCO still allows the accused to be let out into society and live a fairly normal life, as opposed to imprisonment

Deterrence

Conditions that can be imposed on offenders can deter offenders (ex. if they hate community work), and discourage reoffending

Denunciation

Depends on the conditions & the case itself, (quoi?)

Rehabilitation

Special conditions of CCOs can allow offenders to be rehabilitated based on their circumstances such as treatment conditions or non-association for bad influences decreasing their chances of re-offending (recidivism) or remaining within risky connections. On the other hand, accused persons may still gain access to and take drugs, or fail any rehabilitation attempts, which would not be able to break any recidivism cycle in the offender.

Explain specialisation cos i cant to save my life

A court hierarchy allows different cases to be distributed to different courts based on their expertise and skills, which has developed overtime due to the same courts hearing the same types of cases. The judicial officer can develop a specialised understanding of the law with respect to the types of cases determined in that particular court.

explain appeals

Parties who are dissatisfied with a lower court’s decision appeal this decision to a higher court, if grounds for appeal exist (question of law, a conviction or severity/leniency of sentence) . The higher court checks whether the lower court’s decision contained any errors and reverses the decision if so. Appeals would not be possible without a hierarchy because there would be no higher and superior court to appeal to and review a case.

roles of legal practitioners

1. Complying with their jury to the court (paramount duty) by acting honestly in their dealings and adhering to rules of evidence and procedure

2. Present case in a manner in the best interest of their client

Solicitors: Provide advice about the law and instruct a barrister in court, research the law and develop evidence

Barrister: present defence’ evidence and argue the accused’s case on their behalf, usually in higher courts